21st Jul 2019

Top German judge fears too hasty EU constitution

A top German judge, based at the Constitutional Court in Karlsruhe, has said that he fears that Europe is pushing ahead with its plans for an EU Constitution too quickly.

In an interview with the EUobserver, Professor Siegfried Bross, a constitutional judge and leading expert in European law, said "the problem is that the process at EU level is going too quickly and a certain slowing down would not be amiss".

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He adds that the new Constitution is such an "extraordinary treaty and the EU is such a complex organism itself that I cannot, as a lawyer and judge, understand why there is so much time pressure and why more time is not taken to think over certain issues".

One of the biggest problems with the draft Constitution, in Prof. Bross' opinion, is that it does not account for a dispute over competences between the EU and its member states.

"This is a big gap that should not be underestimated", said the judge.

Big gap in the Constitution

He calls for a separate court to judge on disputes over competences. The European Court of Justice cannot do this as it may not rule on national constitutional law and the equivalent national courts may not do it as they cannot rule on interpretation of European law.

Such a new court should be at European level and should have a representative from each member state - but it should not be a European institution.

He uses the current dispute between the EU and Germany over EU legislation to ban tobacco advertising as an example of where such a court would be useful.

"In the tobacco case the problem was whether it was about economics law, competition law or health law. Such a case would be for the competence court as Germany disputed the EU's competence in this matter".

Disputes over competences to increase

Professor Siegfried Bross feels such cases will be become more common in the future when the EU claims more and more competences for itself.

The subsidiarity principle - which says that the EU should only act if the goal cannot be better achieved by the member states - offers no relief to the competence confusion, according to Prof. Bross.

This is because once the member states transfer powers to the Commission, they implicitly acknowledge that it is better done at the EU level and so they cannot invoke the subsidiarity principle at a later stage.


Prof. Bross believes that he is not alone in feeling this way, although it is unusual for a constitutional judge to enter the political arena on such topical issues.

"My opinion is, and I have to speak here from a neutral point of view and not in connection with the house [German Constitutional Court], that I am not alone in these thoughts".

The question is whether someone chooses to say it in public, he adds.

Prof. Bross is also in favour of a referendum on the Constitution - referenda are currently are not allowed at the federal level in Germany.

This issue, he says, should have been sorted out at national level before the Convention [which drew up the draft EU Constitution] was given its mandate.

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