Thursday

28th Mar 2024

Opinion

The European Court of Justice vs German Constitutional Court

  • Germany's most senior court, the Constitutional Court in Karlsruhe. The initiative of the European Commission to start infringement proceedings against Germany is an existential matter of survival (Photo: German Constitutional Court)

The decision of the European Commission to start infringement proceedings against the EU's largest member state, Germany, is politically sensitive.

From the personal perspective, the decision pitches German EU Commission president Ursula von der Leyen against her former boss and mentor, Germann chancellor Angela Merkel. This is the more remarkable since the dispute is not between von der Leyen and Merkel, but between the German Constitutional Court (Bundesverfassungsgericht, BVG) and the EU Court of Justice (ECJ).

Read and decide

Join EUobserver today

Get the EU news that really matters

Instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

The courts are at loggerheads about the question as to who has the last say in matters relating to European law, Karlsruhe or Luxembourg?

At first glance, the initiative to take Germany to court may seem to fit in the larger pattern of increasing activities of the commission as guardian of the treaties.

Seasoned commentators tend to compare the EU with a class of naughty schoolchildren. Others portray them as a bunch of frogs eager to jump from the wheelbarrow. They argue that the commission is right to set an example, even if it does not disagree with Germany, but rather with the independent top German court.

Should the commission allow Germany to do as it pleases, other countries may follow suit.

Depicting the commission as a prim schoolmarm, however, misses the mark and reveals only the tip of the iceberg. The stakes are much higher.

Seen from the constitutional perspective, the decision of the commission signals the next round in the epic 'war of the judges' between the highest administrative court of the EU's largest member state, and its own Court of Justice.

From this angle, the dispute is essentially about the nature of the EU. This conflict has been brewing ever since the foundation of the Union by virtue of the 1992 Maastricht Treaty and has reached boiling point with the verdict of the BVG of 5 May 2020.

The line of thought developed by the German Constitutional Court may be summarised as follows. In its 'Maastricht-Urteil' of 1993 the BVG characterised the EU as a compound of states ["Staatenverbund"] and argued that the citizens of the EU are not 'real' citizens.

This decision was exacerbated by the 2009 verdict on the Lisbon Treaty, in which the BVG concluded that the European Parliament is merely a 'supplementary structure' or a fake parliament.

The BVG rounded this line of reasoning of by challenging the authority of the ECJ. It held in no uncertain terms that the EU Court has not the last say in matters pertaining to EU law and that Karlsruhe prevails over Luxembourg.

Death of the Westphalian system?

Applying the same treaties, the ECJ has established over the years that 1) EU law takes precedence over national laws and regulations, that 2) EU citizenship is the primary status of the nationals of the member states and that 3) the EU has an autonomous democracy.

As both the judges of the BVG and those of the ECJ are professionally-educated lawyers, the question arises how this clash of opinions can be explained. Same treaties, diametrically opposed outcomes.

The most likely reason is that the lawyers concerned are entering the court room with different sets of presuppositions. Analysis of the verdicts, given by the BVG, reveals that their findings are informed by the traditional paradigm of international relations, known as the Westphalian system.

It contains a code of conduct for the relations between states, which dates back to the 17th century and which underlies the functioning of the United Nations.

This approach is based on the principles that states are sovereign, that they treat each other on equal footing and that they refrain from interfering in each other's internal affairs. The word sovereignty is derived from the Latin term 'summa potestas' and implies that states do not have to recognise higher authorities like popes or emperors.

Violation of the principle of non-interference may constitute a reason for war.

The consequences of this approach are that the concepts of democracy and the rule of law can only flourish within the borders of sovereign states.

It follows that organisations of states cannot function on a democratic footing. In line with this approach, organisations of states in other parts of the world such as the African Union or ASEAN do not have citizens and have no democratic aspirations.

So, the German Constitutional Court finds that EU citizens are no 'real' citizens, that the European Parliament is not a 'real' parliament and that the ECJ can never be a 'real' court of last resort.

The ultimate consequence of this 'Westphalian' approach is that the EU cannot exist.

The initiative of the European Commission to start infringement proceedings against Germany is therefore not a routine decision to maintain order in an unruly class, but rather forms an existential matter of survival.

Legal Europe is holding its breath.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

EU takes legal action against Germany on bonds ruling

The European Commission on Wednesday (9 June) launched legal action against Berlin, after determining that last year's landmark decision on bond-buying by Germany's Constitutional Court "constitutes a serious precedent" that puts at risk the EU's legal order.

Column

Why Germans understand the EU best

In Germany, there is commotion about a new book in which two journalists describe meetings held during the corona crisis between federal chancellor Angela Merkel, and the 16 prime ministers of its federal constituent states.

Top EU court rejects Hungary's challenge to sanctions probe

Hungary has lost a legal challenge against a European Parliament vote that opened the way for the Article 7 sanctions probe into the erosion of democratic standards under prime minister Viktor Orbán's rule in the country. Budapest queried the abstentions.

Croatian and Slovak courts seen as 'least independent'

Independence of courts in Austria, in Finland, Germany, Luxembourg, the Netherland and Denmark is seen as very, or fairly, good, according to a survey published with the EU Commission's annual justice scoreboard.

Why UK-EU defence and security deal may be difficult

Rather than assuming a pro-European Labour government in London will automatically open doors in Brussels, the Labour party needs to consider what it may be able to offer to incentivise EU leaders to factor the UK into their defence thinking.

Column

EU's Gaza policy: boon for dictators, bad for democrats

While they woo dictators and autocrats, EU policymakers are becoming ever more estranged from the world's democrats. The real tragedy is the erosion of one of Europe's key assets: its huge reserves of soft power, writes Shada Islam.

Latest News

  1. Kenyan traders react angrily to proposed EU clothes ban
  2. Lawyer suing Frontex takes aim at 'antagonistic' judges
  3. Orban's Fidesz faces low-polling jitters ahead of EU election
  4. German bank freezes account of Jewish peace group
  5. EU Modernisation Fund: an open door for fossil gas in Romania
  6. 'Swiftly dial back' interest rates, ECB told
  7. Moscow's terror attack, security and Gaza
  8. Why UK-EU defence and security deal may be difficult

Stakeholders' Highlights

  1. Nordic Council of MinistersJoin the Nordic Food Systems Takeover at COP28
  2. Nordic Council of MinistersHow women and men are affected differently by climate policy
  3. Nordic Council of MinistersArtist Jessie Kleemann at Nordic pavilion during UN climate summit COP28
  4. Nordic Council of MinistersCOP28: Gathering Nordic and global experts to put food and health on the agenda
  5. Friedrich Naumann FoundationPoems of Liberty – Call for Submission “Human Rights in Inhume War”: 250€ honorary fee for selected poems
  6. World BankWorld Bank report: How to create a future where the rewards of technology benefit all levels of society?

Stakeholders' Highlights

  1. Georgia Ministry of Foreign AffairsThis autumn Europalia arts festival is all about GEORGIA!
  2. UNOPSFostering health system resilience in fragile and conflict-affected countries
  3. European Citizen's InitiativeThe European Commission launches the ‘ImagineEU’ competition for secondary school students in the EU.
  4. Nordic Council of MinistersThe Nordic Region is stepping up its efforts to reduce food waste
  5. UNOPSUNOPS begins works under EU-funded project to repair schools in Ukraine
  6. Georgia Ministry of Foreign AffairsGeorgia effectively prevents sanctions evasion against Russia – confirm EU, UK, USA

Join EUobserver

EU news that matters

Join us