Yaer XXX, 1998, Number 1, Page 25



The Constitutional Court of the Federal Republic of Germany (the Bundesverfassungsgericht) introduced an important innovation in German constitutional decision-making as concerns the relationship between national law and Community Law, with a unanimous decision taken by its Second Senate on the 22nd of October 1986 (Europarecht 1987-1, pp. 51 ff.).
The text reads:
 “1.a) The Court of Justice of the European Community is a legal judge in the sense of article 101, section 1 n. 2 of the Constitution. It is a sovereign judging body, created by the Treaties establishing the Community, which decides in the final instance in the framework of powers and procedures normatively laid down on the basis of juridical rules and criteria, and with the independence that a judicial body must have. b) The procedures followed by the Court of Justice correspond to the correct requirements of the rule of law; these guarantee the right to be heard, the possibility to act as a prosecutor or as a defendant according to procedures suited to the object of the dispute and a competent and freely chosen defence.
2. So long as the European Communities, and in particular the decisions of the Court of Justice of the Communities, guarantee in general that in its relationship with the powers of the Community there is effective protection of fundamental rights on the same level, as regards its basic characteristics, as the protection considered uninfringeable by the Constitution, especially in its essential contents, the Federal Constitutional Court shall no longer exert its judgment on the applicability of derivative Community law as a juridical foundation in the decisions of courts and administrative authorities which are operative in the jurisdictional sphere of the Federal Republic of Germany, and will not in future test that law’s compliance with the fundamental rights guaranteed by the constitution.”
The ruling of the Bundesverfassungsgericht is significant in a number of ways. Firstly, it upholds the principle — new in the history of the Court’s decisions on this subject — that not only must the rule that Community law prevails over national law be generally recognized, but also that if a conflict arises, brought up by a national court, between European and national provisions the ruling on the matter must not be taken by the national Constitutional Court, but by the European Court of Justice. This implies that, under certain conditions, which I will mention later, Community law is removed from any judicial review in respect of the national constitution. In this way the principle of the prevalence of European law not only over ordinary national law but also over national Constitutional law is established.
The fact that the validity of this principle, as far as the jurisdiction of the courts of the Federal Republic is concerned, has been recognized only today is justified in the ruling with an extremely interesting argument, which at the same time in some way limits its scope. The Court refers to a former ruling of May 29, 1974, in which the argument was put forward that the level of European integration which had been reached could not allow one to affirm that the protection of rights afforded by the Court of Justice of the Community was comparable with that guaranteed by the Bundesverfassungsgericht. “The Community did not yet have a legitimate Parliament elected directly and democratically, by general elections, with legislative powers and to which the bodies of the Community with legislative powers were fully responsible; it did not yet have, in particular, a codified catalogue of its fundamental rights; the decisions of the Court of Justice did not at that time have the necessary guarantees to secure the necessary certainty of law.” But, since then, the ruling goes on, “the protection of fundamental rights by the European Communities has been greatly increased, and it can now be considered to comply in its orientation, contents and efficacy to the standards laid down by the Constitution.”
The argument of the Bundesverfassungsgericht isolates an extremely important and very sensitive point. It is in fact clear that if it is true that in the period between 1974 and 1986 the European Parliament became more legitimate by being elected directly by universal suffrage, it is also true that during the same period it has not obtained the legislative powers and the powers of control which the ruling attributes to it, except in the ambiguous and totally ineffective form laid down by the regulations of the Single European Act of Luxembourg. In the meantime, with a view to the internal market which is envisaged for 1992, the work that the unelected bodies of the Community do has increased substantially. One has to conclude that the lack of democracy in the Community has become worse rather than better since the election of a powerless Parliament.
The ruling of the German Constitutional Court is still very important in the history of the Community, however. It focuses attention on a very serious contradiction, but this is a contradiction that the politicians and not the judges should resolve, because only the politicians created it, refusing, with their short-sighted but tenacious attachment to national sovereignties, to reform the institutions of the Community so that their powers of decision come under the citizens’ control.
The judges are only doing their duty in creating through patient, intelligent work, one of the most solid realities of the de facto unity of Europe: European law. They have only, in the letter and the spirit of the Treaty of Rome, to draw inferences from the “functional relationship between European law and that of the member states” taking into account the fact that “the Community Treaties … and the law based on them are part of the internal law system … and must be observed, interpreted and applied by … the courts (of the member states).” In this way the contradiction between the Europe of the people which everyday consolidates its unity and the Europe of the governments, which seems only to be able to find reasons for division, is becoming more and more apparent to everyone. But it is a good thing that the contradictions are becoming more marked, because this gives us a better chance of getting out of this intolerable situation in which twelve indecisive, corporatist governments have blocked the work of De Gasperi, Adenauer, Schuman, Spinelli and Monnet.
To conclude we should note that the ruling of the Bundesverfassungsgericht contains some important thoughts on the question which the UEF posed at its Congress in Strasbourg, regarding the possibility of a referendum on European Union, to be held at the same time as the European elections in 1989, on the basis of a decision which ought to be taken by the Community’s Council of Ministers solicited by a solemn appeal of the European Parliament. This is a decision whose constitutionality is disputed in many political circles in the Bundesrepublik. Now because a referendum on this subject would unequivocally be part of the law system of the Community, the decision of the Constitutional Court of the Federal Republic brushes aside all objections to it because it declares that it is not its role to interfere in decisions of that sort. It goes without saying that the initiative of the European Parliament would constitute a definite guarantee of respect for fundamental democratic rights, whose violation could only once more raise the problem of the jurisdictional monopoly of the Court of Justice in matters of Community law.
Francesco Rossolillo


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