The German Federal Constitutional Court and Its Two European Neighbours

chapter 10 A Law Love Triangle? The German Federal Constitutional Court and Its Two European Neighbours

Vanessa Hellmann

10.1 Introduction

Germany1 and Slovenia2 are only two examples for countries in Europe which have transferred judicial power to international and supranational bodies. In fact all 47 member states of the Council of Europe, including not only Ger- many and Slovenia but also Norway,3 the United Kingdom4 and Switzerland,5 transferred judicial power to an international body, and all 28 (27)6 member states of the European Union, including Germany and Slovenia, transferred judicial power to a supranational body. As all member states of the European Union are also member states of the Council of Europe they all transferred judicial power to an international and a supranational body, Germany7 and Slovenia8 among them. All these countries find themselves not only operat- ing within their own national court systems but in a complicated international framework where the judicial power transferred to the Council of Europe is exercised by the European Court of Human Rights and the judicial power transferred to the European Union is exercised by the European Court of Jus- tice. The decisions of both courts are binding for the Member States, and the decisions of both courts have a deep impact on their national law and their national court systems. This chapter focuses on Germany and the German Fed- eral Constitutional Court to explore this impact.

1 See the country report above Chapter 3 Germany, section 3.3. 2 See the country report above Chapter 4 Slovenia, section 4.3. 3 Indeed, Norway is a founding member of the Council of Europe. For the Council of Europe and its members see further below. For Norway also see the country report above Chapter 7 Norway. 4 For courts and judges from an English perspective see the country report above Chapter 6 England. 5 For the Court Management in Switzerland see below Chapter 12. 6 In the meantime, the United Kingdom unfortunately withdrew from the European Union. 7 See the country report above Chapter 3 Germany, section 3.3. 8 See the country report above Chapter 4 Slovenia, section 4.3.

The German Federal Constitutional Court (fcc)9 has two European Neigh- bours: the beforementioned European Court of Justice (ecj) and the beforementioned European Court of Human Rights (ECtHR). Surprisingly, those three courts are not stand alone courts. They are not only forming a geograph- ical triangle (Karlsruhe, Luxembourg, Strasbourg) but they are also deeply in- volved in a relationship of law (or love, see below). This relationship of law (or love) has now for decades been a more than complicated one, at least from the view of German constitutional law. From its outset this special kind of complicated relationship might be alien to scholars from countries which haven’t transferred judicial power to international and supranational bodies the way Germany and other countries have, being party to both the European Union (EU) with its primary and secondary law and the Council of Europe with its European Convention on Human Rights (echr).10 The descriptions, metaphors and pictures used to describe the relationship between those three courts have been manifold: It has been described as a ‘pyramid’ or a ‘mobile’11, a ‘network’12, a ‘jurisdiction’13 or ‘relationship

9 For more information about the court see Chapter 3 Germany, section 3.1.2 and section 3.2.4. 10 For the member states of the European Union and the Council of Europe see already above and further below. Among the countries which transferred judicial power to an international and a supranational body are Germany (see above Chapter 3 Germany, 3.3.), Slovenia (see above Chapter 4 Slovenia, 4.3.). Among the countries which transferred judicial power to an international body are not only Germany and Slovenia but also Norway (see above Chapter 6 Norway), the United Kingdom (for courts and judges from an English perspective see above Chapter 5 England) and Switzerland (for the Court Management in Switzerland see below Chapter 12). China has not transferred judicial power to an international nor a supranational body (see above Capter 2 China, as well as above Chapter 8 and Chapter 9). 11 For the use of ‘mobile’ see the interview with Renate Jaeger in The Economist (26 March 2009) 34. For the use of ‘pyramid’ and ‘mobile’ see Andreas Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund’ (2010) 6 European Constitutional Law Review 175 ff. (in German: (2010) NVwZ 1 ff.); Andreas Voßkuhle, ‘Pyramide oder Mobile? – Menschenrechtsschutz durch die europäischen Verfassungsgerichte’ (2014) EuGRZ 165 ff.; Andreas Voßkuhle, ‘Pyramid or Mobile? – Human Rights Protection by the European Constitutional Courts’ in Dialogue between judges (2014) 36 ff.; Jörg Polakiewicz, ‘Mobile, Counterpoint or Pyramid, The Interaction Between National and European Courts in Human Rights Protection’ in Christian Calliess, Herausforderungen an Staat und Verfassung (2015) 1050 ff. See Ingolf Pernice, ‘La Rete Europea di Costituzionalità –Der Europaische 12 Verfassungsverbund und die Netzwerktheorie’ (2010) ZaöRV 52 (59 ff.). 13 See Hans-Jürgen Papier, Das Rechtsprechungsdreieck Karlsruhe-Luxemburg-Straßburg, (Speyerer Vortrage 2006) 89; Oliver Klein, ‘Straßburger Wolken am Karlsruher Himmel – Zum geanderten Verhältnis zwischen Bundesverfassungsgericht und Europaischem