Staff Research Seminar: Professor Thomas Giegerich (University of Kiel)
In view of its broad review powers and broad popular access, the German Federal Constitutional Court holds a unique position in the European integration process (EU and ECHR). The Court’s critical sympathy towards the EU and the ECHR translates into the retention of problematic review powers which can result in the inapplicability of European acts in Germany. In practice, however, those powers have never led to that result.
Assuming guardianship over the principles of conferral and subsidiarity, the Court claims the power of ultra vires review over EU acts, including judgments of the CJEU (and the ECtHR). That dysfunctional power is incompatible with both the Treaties and the German Basic Law. When called upon in 2010 to exercise ultra vires review in practice, the Court ultimately paid deference to the challenged judgment of the CJEU.
The Court also assumes guardianship over the Basic Law’s core values that make up Germany’s constitutional identity. It claims the power of identity review, that is the power to review EU acts, including judgments of the CJEU (and the ECtHR), as to whether they are compatible with Germany’s constitutional identity. With regard to binding provisions of EU law, or judgments of the CJEU or the ECtHR, the Court’s identity review cannot be justified under either the Treaties (including Art. 4 (2) TEU) or the Basic Law.
The maintenance of the rule of law in European integration can only be successful if it is understood as a common endeavour and joint responsibility of the European Courts in Luxembourg and Strasbourg and the national courts. These courts owe each other cooperation and critical respect. One should not threaten to use unlawful acts of resistance against imaginary perversions of justice which the others will anyhow never commit. The answer to the question posed in the title is therefore a firm ‘no’.
Discussant: Dr Martin Borowski
Staff Research Seminars take place at 1pm in the Senior or Junior Common Room, Birmingham Law School
A sandwich lunch and a glass of wine will be provided from 12:30 pm
Postgraduate students and academic staff are welcome to attend.