Review by the Constitutional Courts of
Proceedings before Ordinary Courts Applying Community Law: the Experience of
the Federal Constitutional Court of Germany
I.
The impact of the
Constitution on ordinary courts
The German
Constitution, the Basic Law, is the supreme set of law binding on all the state
institutions: Parliament, the executive and the judiciary. This is a
consequence of the Rechtsstaat, the rule of law, which implies, in its modern
form, the binding force of the Constitution (as it is expressed in Article 20
of the Basic Law). Constitutional norms on the institutional structure of the
German system as well as on fundamental rights (as it is laid down in Article 1
§ 3 of the Basic Law) are obligatory for the judiciary.
For this reason,
decisions of ordinary courts (as well as of administrative courts and courts of
other law branches, such as specific courts on labour law, social law or
finance law) must be conform to the Constitution. Also the proceedings before
the courts have to be compatible with constitutional law. In case of
non-conformity either of an ordinary court decision or of ordinary court
proceedings as such, control by the Constitutional Court can be initiated.
If ordinary
courts (or courts of other law branches) are applying Community Law, the Constitutional Court’s control is also possible but there are certain particularities which
have to be taken into account.
Several
questions arise: Which are the criteria for such a control: national
Constitutional Law or Community Law? Can the application of Community Law be a
breach of national Constitutional Law followed by the reaction of the Constitutional Court? Is non-conformity to Community Law a violation of Constitutional Law?
Especially, is the omission to make a preliminary question to the European
Court of Justice by an ordinary court a breach of the Constitution?
The
jurisprudence of the Federal Constitutional Court of Germany has dealt with
Community Law in important cases so that experience regarding to some of these
questions does already exist. The following contribution shall explain, in a
comprehensive way, the main solutions found by the Federal Constitutional Court.
First of all, it
must be underlined in this context that the relationship between Constitutional Court and ordinary courts is characterised by the fact that the Constitutional Court is limited to control violations of constitutional, not of ordinary
law. The Constitutional Court is not the supreme instance of ordinary courts
and must therefore refrain from judging on ordinary law itself. It is not easy
to find the adequate distinction between a breach of Constitutional law and a
breach of ordinary law, but the Constitutional Court always tries not to
intervene into the sphere of the ordinary courts.
And a second
remark on how such constitutional control can be launched: by an individual constitutional
complaint (Verfassungsbeschwerde) or by the reference to be made by an
ordinary court to the Constitutional Court for the preliminary control of the
constitutionality of alaw to be applied by the ordinary court (konkrete
Normenkontrolle or Richtervorlage, in the sense of Article 100 § 1 of the Basic
Law).
II.
The solution of a conflict of national
ordinary law and Community Law by the ordinary courts
In accordance to
the Simmenthal decision of the European Court of Justice (1978, 629) it is up
to the ordinary court (or a court for a specific law branch) to decide in case
of conflict between national and supranational law. The principle of Community
Law supremacy means that the ordinary court has to apply EC Law and to refuse
the application of the contravening national law. There is no doubt that the
instance court which is competent to decide a certain case has to resolve, on
the basis of this principle of EC Law supremacy, this conflict by itself. No
reference can be made in such a case to the Constitutional Court for violation
of the so-called integration norms (Arts. 23 § 1 and 24 § 1 of the Basic Law).
The Constitutional Court itself has no competence to decide such a conflict
between Community Law and national law as if it were a violation of Constitutional
Law.
A different
question is whether a German law which is not conform to EC Law can be annulled
by the Constitutional Court for this reason. A decision of the Czech Constitutional Court shows this way until now not yet practised by the German Constitutional Court. But as to the European Convention of Human Rights the Constitutional Court in the Görgülü case the German Constitutional Court pointed out that
violation of the Strasbourg Convention means also a violation of an internal
fundamental right (See. R. Arnold, La Cour constitutionnelle fédérale allemande
et la Cour européenne des Droits de l’ homme, Revue internationale de droit
comparé 2005, 805 – 815). It is not excluded that the Constitutional Court will
transfer this concept also to violations of Community Law and regard them as a
violation of fundamental rights. This would have the consequence that the Court
could annul an ordinary court decision applying a German law which is not
compatible with Community Law. But this question shall not be deepened here.
III.
The acceptance of the main structures of the
supranational order by the German Constitutional Court
In early
decisions, the Federal Constitutional Court (22, 293) accepted the main
structures of the supranational order as pointed out in the basic decision of
the European Court of Justice in the Costa/ENEL case (6/64, 1964, 1251): the
autonomy of EC law, its direct applicability and its primacy over national law.
Primacy was also expressly accepted by the Federal Constitutional Court,
without any reservation. A reservation was made later, in the field of
fundamental rights.
In a later
decision, the Constitutional Court underlined the right of the European Court
of Justice to develop Community Law and to state the possibility of direct
applicability of a directive what had been denied by the Supreme Financial
Court (75, 223).
The binding
authority of the Federal Constitutional Court decisions entail the necessary
obedience of the ordinary court to follow these positions.
IV.
The particularities in the field of
fundamental rights
Two famous
decisions of the Federal Constitutional Court have characterised the
development of the jurisprudence from a more national to a more supranational
standpoint: the so-called Solange I decision of 1974 (37, 271), rendered on the
basis of a reference for a preliminary question under Article 100 §1 of the
Basic Law, made by the administrative court of Frankfurt a.M., gave preference
to the national fundamental rights denying primacy of a EC regulation. The
argumentation of that decision was that the individual must be efficiently
protected by fundamental rights against interventions of the supranational
power. The Court, ready to accept a fundamental rights protection on the
supranational level within the European Communities as a consequence of
European integration, stated at that time that there was no sufficient
fundamental rights protection by the Community. Thus, the Constitutional Court
applied the national fundamental rights but underlined that this solution shall
be in application only until a sufficient fundamental rights protection will be
created on the supranational level.
In 1986, the
Solange II decision of the Federal Constitutional Court was rendered (73, 387).
In this decision, 12 years after the first judgment in this field, the Court
now renounced to apply national fundamental rights stating that the rights
protection in the Community area had been developed by the judges creating
so-called general principles of Community Law with fundamental rights function.
This judge-made fundamental rights charter was considered, in this second
decision, sufficient and equivalent to the protection standards of the German
Basic Law itself.
The Court now
described the role of the European Court of Justice and the Federal
Constitutional Court (as it was expressly said in the Maastricht decision of
1993 – 89, 155) as a role of cooperation. The Luxembourg Court should control
the compatibility of the EC legal acts with the general principles of Community
Law while the Federal Constitutional Court only had a role of a general
observer with the task to control if the fundamental rights standard at the
supranational level has been maintained or reduced. In case of an essential
reduction of the supranational protection standard, the Constitutional Court
would re-open the constitutional review ofEC legal acts under German
fundamental rights.
In 2000, in a
case on the banana market, the Constitutional Court confirmed the Solange II
position declaring inadmissible the preliminary control of the EC regulation
with German fundamental rights by the Federal Constitutional Court initiated by
the Frankfurt administrative court. The Federal Constitutional Court stated
that there has not been any essential reduction of the EC protection standard
until now so that it would not make any control under the national fundamental
rights (June 7 2000, 2 BvL 1/97).
This position
has not been abandoned in the recent Federal Constitutional Court’s decision on
the European arrest warrant (July 18 2005, 2 BvR 2236/04). In this decision the
Constitutional Court did not challenge the constitutionality of a European
Union decision (within the framework of pillar III), but declared
unconstitutional and void the German Act of Parliament implementing EU law on
the arrest warrant. Thus, only the constitutionality of the internal German law
was concerned by the decision not that of European Union law.
With regard to
the types of the proceedings leading to the two Solange decisions of the Constitutional Court it can be said, that the Solange I decision was based on a preliminary
question made by the Frankfurt administrative court to the Federal
Constitutional Court (Richtervorlage) whereas the Solange II decision was
rendered on behalf of an individual constitutional complaint
(Verfassungsbeschwerde). As to the first decision the Constitutional Court had
modified the requisites for a preliminary question under Article 100 § 1 of the
Basic Law, modification which encountered vehement critics in literature.
It is also
important that the Federal Constitutional Court underlined its exclusive
competence to decide on whether the supranational fundamental rights protection
standard is sufficient or not (R.Arnold, La unificación alemana. Estudios sobre
derecho alemán y europeo, Madrid 1993, 132). Thus, it is not up to the ordinary
courts to have a different view in this respect.
As a summary it
can be said that the Federal Constitutional Court has chosen a way between the
positions of the Italian and Spanish Constitutional Courts on the one side and
the European Court of Justice on the other side (R. Arnold, Die europäischen
Verfassungsgerichte und ihre Integrationskonzepte in vergleichender Sicht,
Festschrift Friedrich Koja, Wien, New York 1998, 3-22). In the Court’s view it
is indispensable that a sufficient protection of the individual is guaranteed,
no matter whether on the supranational or the national level. As a consequence
of integration the Court accepts that the individual’s protection shall be realised
by the supranational order and, only in lack of such a sufficient protection,
the national order shall take over this function.
This position
can also be extended to the field of Rule of Law (Rechtsstaatlichkeit) given
the fact that the European Court of Justice also developed general principles
of EC Law in this field. But the Federal Constitutional Court of Germany has
had no occasion until now to decide on such a matter.
V.
The ultra vires concept of the Maastricht decision
In the decision
of the Federal Constitutional Court on the constitutionality of the Treaty of
Maastricht in 1993 (89, 155) it claimed the right to control whether an EC
legal act is ultra vires or not. If the Constitutional Court would state this,
the German institutions would not be allowed, according to the Constitutional Court’s opinion, to apply this act within the territory of the Federal Republic. This position was vehemently criticised, especially under the fact that
the Constitutional Court would not comply to its obligation to refer, by asking
a preliminary question, to the European Court of Justice when deciding whether
ultra vires or not.
In the Maastricht decision the Court also stated the possibility to attack directly EC legal acts
for being ultra vires, without any regard to the fact that the EC legal acts
derive from an autonomous legal order, normally not underlying German
constitutional jurisdiction.
VI.
Omission of ordinary courts to make a
preliminary question to the European Court of Justice under Article 234 of the
EC Treaty
The Federal Constitutional Court has developed the idea that a German ordinary court, obliged
under Article 234 of the EC Treaty to make a preliminary question to the
European Court of Justice, would violate the constitutional guarantee of the
lawful judge (Article 101 of the Basic Law) if it omits to make such a
reference.
As it is well
known, ordinary courts of last instance are obliged to address to the European
Court of Justice, by a preliminary question, for the interpretation of Community
Law applicable in national proceedings. An exception is only admitted if there
are no objective doubts on the interpretation of this EC norm. This was clearly
stated by the European Court of Justice in the CILFIT decision ( 283/81, 1982,
3415).
In a series of
judgments, the Federal Constitutional Court stated that the European Court of
Justice is a court the national constitutional guarantee of the lawful judge
refers to. But for a long time, the Constitutional Court hesitated to state a
violation of this guarantee. A mere incompatibility to Article 234 was only
regarded as an "error in procedendo" but not as a violation of the
constitutional guarantee. Only in qualified cases such a violation would occur.
This was stated by the Federal Constitutional Court for the first time when the
Supreme Financial Court in Munich refused to make a preliminary question to the
Luxemburg Court (though the first instance had done this) and refused to accept
the position of the European Court of Justice stated in its judgment for the
first instance ( 75, 223).
A violation of
the lawful judge guarantee was also statedby the Federal Constitutional Court
(NJW 2001, 1267) with regard to a decision of the Hanseatic Supreme
Administrative Court which omitted to make a preliminary question to the
European Court of Justice and which interpreted the Community Law it had to
apply in contravention to EC fundamental rights. Thus, this omission was
regarded as a hindrance to realise the fundamental rights protection for the
individual: the Luxembourg Court would have interpreted the EC norms – contrary
to the Hanseatic court − in the light of the Community fundamental
rights. This was sufficient for the Federal Constitutional Cour to state a
violation of the guarantee of the lawful judge under Article 101 of the Basic
Law.
VII.
Conclusion
It can be
concluded that the Federal Constitutional Court has made an essential
contribution to the acceptance of Community Law by the ordinary courts. The EC
law impact on national law clearly prevails in the jurisprudence of the German
ordinary courts.
