Search Results

This chapter focuses on the effort to translate the judicial dimension of the postwar constitutional settlement into supranational form. The chapter initially summarizes the critical role played by the European Court of Justice (ECJ) in the integration process. The focus of the chapter, however, is on the national high courts and their role in legitimizing European integration from the perspective of the postwar constitutional settlement. As this chapter shows, the national high courts have been caught between two competing tendencies: first, between the 1960s and the 1980s, the tendency toward strong deference to the political choice in favor European integration; and second, since the 1990s, with the German Federal Constitutional Court (Bundesverfassungsgericht) at the forefront, the desire to limit that strong deference in their Kompetenz-Kompetenz jurisprudence. This chapter revises conventional understandings of that latter jurisprudence by showing its foundations in normative principles which were central to the postwar constitutional settlement of administrative governance on the national level, notably delegation and mediated legitimacy. This grounding suggests an idea of European governance as less sui generis than normally supposed. Rather, it is seen as a new dimension of the diffusion and fragmentation of regulatory power away from the historically constituted bodies of the nation-state, which remain the locus of democratic and constitutional legitimacy in the European system.

The basic principle for the Bundesverfassungsgericht (German Federal Constitutional Court) has been that the international delegation of limited and revocable powers generally has been accepted as long as the organizations to which powers are delegated also provide adequate protection of individual rights. The principle that delegation is to be functional was another way to create safeguards concerning the extent to which powers were delegated. That principle has been applied consistently with regard to delegations to the European Community (EC), although the definition of powers that are limited and revocable has been given an ever-wider interpretation over time. When considering how the Constitutional Court has exercised constitutional control over delegations to international organizations, it also is important to note that, in relation to the EC and the European Union (EU), it has controlled a process of constitutionalization at the level of European integration. This chapter compares that development with how the Constitutional Court has conceptualized the national constitutional control of developments in the second and third pillars of the EU and European integration more generally. In that context, it also provides a short background outlining how the Constitutional Court has treated problems of European integration. It argues that the development of supranational integration sheds new light on some of the central aspects of theories of judicial control of political decision-making.

The chapter deals with Germany. Although the German legal tradition is relatively open to non-mandatory legal inspiration, the sources of such inspiration are nonetheless generally limited to sources of national origin. The practice of three of the supreme federal jurisdictions, the Federal Constitutional Court, the Federal Supreme Court, and the Federal Administrative Court, discloses only sporadic passing references to foreign inspiration, typically within a larger block of citations of domestic case law or scholarship. References to foreign solutions serve as an additional supportive argument. In the German context, however, the limited quantity of direct uses of foreign law by courts should be weighed against the relatively rich comparative law scholarship.

This contribution analyses the cases in which ordinary German judges have annulled statutes for being unconstitutional and thus exercise what is also known as ‘diffuse constitutionality review’. In the past, this used to be the case under the Weimar Constitution and in West Berlin. However, what is less known is that even today, certain statutes that are deemed to be pre-constitutional or certain legislative provisions from the former GDR can be declared as conflicting with the German Constitution. This contribution argues that such diffuse constitutionality review might also have contributed to a further strengthening of the rule of law in Germany. Ultimately, from a comparative constitutional law perspective, this contribution also provides a more nuanced view of the German model of constitutionality review, which has been traditionally classified as belonging to the centralized ‘European’ or ‘Kelsenian’ model, with a specific constitutional court, the Bundesverfassungsgericht, having the monopoly over such review.

This chapter contains two sections, each written by a justice from one of the two Senates of the ‘twin court’ that is the German Bundesverfassungsgericht: the First Senate dealing mainly with fundamental rights, the Second serving as ‘State Court’ that deals also with Germany’s international relations. Topics discussed include the influence of European law and international law on the Federal Constitutional Court; divergences between the Federal Constitutional Court and European courts; the approach of other national courts; interactions between constitutional courts; and interactions between European courts in the jurisprudence of constitutional courts.

This chapter discusses the German constitutional court, otherwise known as the Federal Constitutional Court (Bundesverfassungsgericht; ‘BVerfG’). It first traces the development of the German process of constitutional jurisdiction from its pre-Nazi era roots to its astounding post-war transformation into one of the world’s leading courts. The chapter looks at the challenges inherent in the founding of the BVerfG before providing an overview of the organization and role and functions of the BVerfG. It shows how the BVerfG acts as the ‘guardian’ of German constitutional law. To conclude, this chapter reflects on the increasing Europeanization of constitutional law and what it means for the BVerfG to navigate this new era of constitutional pluralization.

This chapter examines how Germany’s Basic Law can prevent the transformation of the European Union into a state. It begins with a discussion of the German Federal Constitutional Court’s (Bundesverfassungsgericht) 2009 decision on the compatibility of the Lisbon Treaty with the Basic Law. In particular, it highlights the message of the Bundesverfassungsgericht’s judgment: that European integration will not be hindered by Germany but finds it limits in the Basic Law. It then explains why, on the side of the EU, the German Court puts so much weight on the treaty character of the EU’s legal basis and why, on the side of the Member States, much emphasis is placed on sovereignty. It also considers the question of whether Germany would be allowed to join a federal European state if its democratic legitimacy were at the level required by Article 79(3) Basic Law.

This chapter examines the jurisprudence of national courts on crisis-related measures. The material presented in this chapter will be divided into two parts. First, this chapter will examine some of the most important judgments delivered by courts in lender states during the Euro crisis, the emphasis being on the jurisprudence of the German Federal Constitutional Court. These cases primarily focus on the effects of financial assistance mechanisms and revised EU fiscal governance rules on the principle of democracy, parliamentary prerogatives, and national budgetary powers. A further strand of case law focuses on the measures adopted by the European Central Bank. Second, this chapter will look at review by national courts in borrower states, the principal focus being on social challenges brought by austerity-hit litigants in Greece. The comparative analysis sheds light on the different types of challenge facing courts in borrower and lender states, as well as the different starting points and the subtle differences in the reasoning provided by courts in their judgments. As regards borrower states in particular, the twin challenge is to examine to what extent litigants had any success in challenging in national courts the bailout conditions; and the extent to which arguments about civil or socio-economic rights had purchase at national level. The chapter further looks at review by national courts in other jurisdictions, as well as review by supranational and international courts or bodies. Last, it puts forward a number of ideas on fundamental rights adjudication in times of economic crisis.

This chapter charts the Federal Constitutional Court’s historical development, with a nuanced attention to the motley preconditions—and the irreducible contingency—of its remarkable rise. It begins with the rise of the Court, which adroitly used the opportunities offered by the uncharted situation of postwar West Germany. Especially by way of its extensive human rights jurisprudence, the Court worked toward a fundamental liberalization of the German legal system and shook up the traditional judiciary. The Federal Constitutional Court thus became the midwife of the second German democracy. However, owing to its successes and the eventual stability and prosperity of the Federal Republic, which was now a liberal society with a solidified democratic culture, the country came to depend less and less on the Court and its initiatives. The Court thus became a victim of its own success. Other factors involved in the Court’s fading importance are the loss of charisma through routinization and the increasing Europeanization and internationalization of the German legal system.

This chapter stresses that nothing in the Federal Constitutional Court’s growth was preordained. It depicts the Court’s initially fraught relations with political actors, ordinary judges, and legal academics, scrutinizing the institutional peculiarities that have made the Court what it is. The manner and direction in which the Court developed was recognizable merely in outline in the fundamental decision by the constitution’s founders for an institutionally independent constitutional adjudication, which according to the size and extent of its jurisdiction would be powerful. This was due to the fact that the Federal Constitutional Court in its totality was unprecedented both in terms of constitutional history and comparative constitutional development: during the deliberations on the Basic Law and Federal Constitutional Court Act, there were repeated specific references to the Staatsgerichtshof in Weimar and the U.S. Supreme Court. But both in its numerous distinctive details and even in the overall concept, the constitutional court of the Basic Law represents a new creation.

This chapter chronicles the proliferation of doctrinal standards over time and underscores the bizarre lengths to which that proliferation has recently extended. It shows how the Federal Constitutional Court makes use of a distinctive technique for reaching and justifying decisions, which it elaborated over many years, and which today it habitually applies. The Court regularly divides the reasoning of a decision into two blocks. The first block identifies general statements on the interpretation of the constitution. In such general terms, the Court establishes the legal standard, which will lie at the foundation of the case. The application of the standard to the determinative set of facts follows. The facts of the specific case first enter the reasoning in the second part, the “subsumption section.” The standard already formed in general-abstract terms is now applied to the specific issue the Court has to decide. Finally, the chapter warns that the era of bold new standards is probably gone for good.

This chapter takes up the daunting question of the Federal Constitutional Court’s legitimacy. It scrutinizes possible bases of such legitimacy, carefully assesses each one, and shows them all to be problematic. The investigation approaches the topic with a three-part distinction. It begins with the legality of the Court and, therefore, the question to what extent the assumption that the Court is bound to law, and merely applies the law, appropriately describes its actual practice. After that it takes a look at the legitimacy of the Court in terms of the factual social acceptance of its decision-making practice. Finally, and most extensively, the investigation turns to the normative justification of the Court by asking about good reasons for its present institutional configuration. In a concluding reflection, the chapter examines the interrelation of the above-mentioned elements.