Always Steering a Straight Course? The German Federal Constitutional Court and European Integration
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Always Steering a Straight Course? The German Federal Constitutional Court and European Integration Torsten Stein
© ERA 2011
Abstract In the early years of European Integration the German Federal Constitutional Court seemed to be very willing to support the European Court of Justice in its decisions to push integration forward. Later on the Constitutional Court claimed a residual competence to control the protection of human rights and to declare ultra virus acts of Community organs as inapplicable in Germany. No action ever followed those strong words, and with its latest decision in Honeywell the Constitutional Court returned to its original position. Keywords German Federal Constitutional Court · European Court of Justice · Protection of human rights · Ultra virus acts 1 Introduction Ships normally steer a straight course, unless they try to escape from pirate attacks off the coast of Somalia. The course steered by the German Federal Constitutional Court vis-à-vis the European Integration at times appeared to be a bit erratic, at least verbally. Among the Constitutional Court’s responsibilities are the protection of human (fundamental) rights, the protection of the prerogatives and the sovereignty of the German legislative bodies, and, most recently, of the “constitutional identity”. At times one could get the impression that the Constitutional Court felt the need to escape from or defend against attacks from Europe on these cornerstones of German statehood. But in the end, as we will see, the Court found back to its original course; maybe even a bit too easily. Professor Dr. T. Stein, Chair for European Law and European Public Law, Director of the Europa-Institut () University of Saarland, Saarbruecken, Germany e-mail: [email protected]
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2 The Early Years Soon after the leading decisions of the European Court of Justice (ECJ) in Van Gend & Loos and Costa v. ENEL,1 in which it described the EEC-Treaty as establishing an autonomous legal order, taking precedence over the legal orders of the Member States and having (in part) direct effect, the German Constitutional Court followed2 by saying that the EEC was a “new” public power, independent of the power of the Member States, not a state or federal state, but a sui generis community in the process of progressive integration. Legal rules adopted under their competences were neither public international nor national law. In 1971, the German Constitutional Court found a basis in the German Basic Law (Constitution) for adopting the ECJ’s position,3 finding that Article 24 of the Basic Law (the then “integration article”), if properly interpreted, would not only allow the transfer of sovereign powers to international organisations, but would also mandate that legal acts of such organisations had to be acknowledged and implemented. Even many years later, the Constitutional Court showed itself rather generous in accepting a sometimes quite “dynamic” interpretation of Community law by the ECJ, when it declared the “direct applicability” of EC dir
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