The European Court of Justice vs German Constitutional Court

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.