ERA Forum (2011) 12: 219–228 DOI 10.1007/s12027-011-0200-5 ARTICLE 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 Constitu- tional 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 hu- man (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 es- cape 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] 220 T. Stein 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 directives as being still covered by the “integration programme”.4 But in the meantime, in 1974, came a first warning shot. 2.1 The “Solange I” Decision On 29 May 1974, the German Constitutional Court ruled in an export license case, that had previously been referred by a German Administrative Court to the ECJ (which had confirmed the legality of the disputed EEC Regulation) and had then – be- cause the Administrative Court disliked the ECJ’s answer – been referred again to the Constitutional Court. To the surprise of many, the Constitutional Court decided, al- though not finding any illegality in the given case: “As long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights decided on by a Parliament and of settled validity, which is adequate in compar- ison with the catalogue of fundamental rights contained in the Basic Law, a reference by a court of the Federal Republic of Germany to the Federal Constitutional Court in judicial review proceedings, following the obtaining of a ruling of the European Court under Article 177 of the Treaty (now Article 267 TFEU), is admissible and nec- essary if the German court regards the rule of Community law which is relevant to its decision as inapplicable in the interpretation given by the European Court, because and in so far as it conflicts with one of the fundamental rights of the Basic Law”.5 The Constitutional Court explained its decision as follows: 1Case 26/62 Van Gend & Loos [1963] ECR 1 and Case 6/64 Costa v. ENEL [1964] ECR 1251. 2BVerfGE 22, 293. 3BVerfGE 31, 145. 4BVerfGE 75, 223. 5BVerfGE 37, 271. Always Steering a Straight Course? 221 “. it is not enough simply to speak of the “precedence” of Community law over national constitutional law in order to justify the conclusion that Commu- nity law must always prevail over national constitutional law because, other- wise, the Community would be put in question. Community law is just as little put in question when, exceptionally, Community law is not permitted to prevail over cogent (“zwingendes”) constitutional law, as international law is put in question by Article 25 of the Basic Law when it provides that the general rules of international law only take precedence over simple federal law (...).The binding of the Federal Republic of Germany (and of all member states) by the Treaty is not, according to the meaning and spirit of the Treaties, one-sided, but also binds the Community which they establish to carry out its part in order to resolve the conflict here assumed, that is, to seek a system which is compatible with an entrenched precept of the constitutional law of the Federal Republic of Germany. Invoking such a conflict is, therefore, not in itself a violation of the Treaty, but sets in motion inside the European organs the Treaty mechanism which resolves the conflict on a political level (...). Article 24 of the Basic Law deals with the transfer of sovereign rights to in- terstate the institutions. This cannot be taken literally. Like every constitutional provision of a similar fundamental nature, Article 24 of the Basic Law must be understood and construed in the overall context of the whole Basic Law. That is, it does not open the way to amending the basic structure of the Basic Law, which forms the basis of its identity, without a formal amendment to the Basic Law, that is it does not open any such way through the legislation of the interstate institution (...).ThepartoftheBasicLawdealing with fundamental rights is an inalienable, essential feature of the valid Basic Law of the Federal Republic of Germany and one which forms part of the constitutional structure of the Basic Law”. Twelve years later the Constitutional Court, after having given some more or less open indications in this respect in decisions not relating to Community Law,6 com- pletely reversed the “Solange I”formula. 2.2 The “Solange II” Decision On 22 October 1986, the Constitutional Court ruled in a case which had factual and procedural backgrounds very similar to the case that led to “Solange I”: “As long as the European Communities, in particular European Court case law, generally ensure effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution, and in so far as they generally safeguard the essential content of fundamental rights, the Federal Constitutional Court will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation cited as the legal basis for any acts of German courts or authorities within the 6Cf. BVerfGE 58, 1 (EUROCONTROL); see also BVerfGE 52, 187. 222 T. Stein sovereign jurisdiction of the Federal Republic of Germany, and it will no longer review such legislation by the standard of the fundamental rights contained in the Basic Law; references to the Court under Article 100.1 of the Basic Law for those purpose are therefore inadmissible”.7 The Court, after reminding the “Solange I” decision, explained its 180 degrees turnaround by saying: “In the judgment of this Chamber a measure of protection of fundamental rights has been established in the meantime within the sovereign jurisdiction of the European Communities which in its conception, substance and manner of im- plementation is essentially comparable with the standards of fundamental rights provided for in the Basic Law. All the main institutions of the Community have since acknowledged in a legally significant manner that in the exercise of their powers and the pursuit of the objectives of the Community they will be guided as a legal duty by respect for fundamental rights, in particular as established by the constitutions of member states and by the European Convention on Human Rights. There are no decisive factors to lead one to conclude that the standard of fundamental rights which has been achieved under Community law is not adequately consolidated and is only of a transitory nature (...).TheEuropean Court has generally recognised and consistently applied in its decision the prin- ciples, which follow from the rule of law, of the prohibition of excessive action and of proportionality as general legal principles in reaching a balance between the common interest objectives of the Community legal system and the safe- guarding of the essential content of fundamental rights (...)”. One might add that the ECJ might have misunderstood in the years after and until to- day the Constitutional Court’s formula as to “the safeguarding of the essential content of fundamental rights”.8 When scrutinising a Community measure, the ECJ limits it- self to check whether the measure is suitable to achieve its goal, and whether it does not infringe upon the essential content of a human right.