Das „Kooperationsverhältnis“ zwischen Bundesverfassungsgericht und Europäischem Gerichtshof nach dem PSPP-Urteil

Der Staat ◽  
2021 ◽  
Vol 60 (1) ◽  
pp. 99-131
Author(s):  
Andrej Lang
Keyword(s):  
Network Structure ◽  
Third Parties ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
Cooperative Relationship ◽  
Grand Chamber

Der Beitrag diskutiert die Konsequenzen des PSPP-Urteils für das Kooperationsverhältnis zwischen dem BVerfG und dem EuGH. Dabei wird für eine nüchternere Perspektive statt martialischer Zuspitzungen und gegen einseitige Schuldzuweisungen plädiert. Vielmehr sind wechselseitige Kooperation und Konfrontation in der netzwerkartigen Struktur der Gerichtsbeziehung angelegt. Deshalb markiert das Urteil zwar eine Krise, aber noch nicht das Ende des „Kooperationsverhältnisses“. Die Vorstellung, der Gerichtskonflikt lasse sich nur durch Dritte lösen, sei es in Form eines Vertragsverletzungsverfahrens, sei es durch eine spezielle Gerichtskammer für Kompetenzkonflikte, unterschätzt die fein ausbalancierte Funktionsweise des Gerichtsdialogs und birgt ein bedenkliches Eskalationspotenzial. Der Impuls, die Wiederherstellung der europäischen Rechtseinheit trotz grundlegendem Dissens rechtlich zu erzwingen, kann den Gerichtskonflikt auch eskalieren und eine Lösung zusätzlich erschweren. The article analyzes the consequences of the PSPP ruling for the cooperative relationship between the German Constitutional Court and the European Court of Justice. It argues for a sober perspective instead of martial exaggerations and against apportioning one-sided blame. Rather, reciprocal cooperation and confrontation are inherent in the network structure of the judicial relationship. Although the ruling creates a crisis, it does not yet mark the end of the “cooperative relationship”. The idea that the judicial conflict can only be resolved by third parties, whether in the form of infringement proceedings or by a Mixed Grand Chamber for the delimitation of EU competences, underestimates the delicately balanced functioning of the judicial dialogue and harbors a worrying potential for escalation. The impulse to legally enforce the restoration of European legal unity despite fundamental dissent may end up escalating the judicial conflict and making a solution even more difficult.

The Taricco saga

2018 ◽  
Vol 9 (1) ◽  
pp. 4-11
Author(s):  
Stefano Manacorda
Keyword(s):  
Criminal Law ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Legal Regime ◽  
Judicial Decisions ◽  
Court Of Justice ◽  
European Court ◽  
History Of ◽  
Grand Chamber ◽  
European Criminal Law

On 8 September 2015, a new chapter opened in the history of European Criminal Law as a consequence of the judgment issued by the Grand Chamber of the European Court of Justice in the Taricco case. As a background hereto, the complex series of judicial decisions that have taken place must be recalled, by stressing the role played – among others – by the Italian Constitutional Court and the European Court of Justice (I). On such a basis, a comparative overview will allow us to identify some of the essential legal dilemmas at stake by focusing on the different conceptions surrounding the legal regime of time limitation for criminal offences and the wider implications arising therefrom (II). Apart from the divergence of perspectives which arises between the Italian and European judges, the judicial saga represents a turn in the history of the so-called European Criminal Law which deserves to be analysed.

scholarly journals Separation versus Fusion – or: How to Accommodate National Autonomy and the Charter? Diverging Visions of the German Constitutional Court and the European Court of Justice

2013 ◽  
Vol 9 (3) ◽  
pp. 391-419 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Counter Terrorism ◽  
Court Of Justice ◽  
European Court ◽  
Separation Thesis ◽  
National Autonomy ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
German Federal Constitutional

German Federal Constitutional Court's dialogue with the European Court of Justice – Background, trigger, contents and context of the FCC's reaction to the Åkerberg Fransson judgment – The FCC's Counter-Terrorism Database judgment – Constitutional control standards – theoretical repercussions of the judicial dispute – Underlying conceptual differences – The ‘fusion thesis’ versus the ‘separation thesis’ – Pragmatic approximation of divergent positions

Die Staatstheorie des Bundesverfassungsgerichts und Europa

2020 ◽  
Author(s):  
Robert Chr. van Ooyen
Keyword(s):  
Human Rights ◽  
State Theory ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
Eighth Edition ◽  
The Right ◽  
The Guardian

With the Treaty of Lisbon, the Second Senate of the German Constitutional Court intensified its judgements with regard to Europe and in its recent rulings on rescuing the euro and the electoral threshold in EU elections emphasised its belief in a form of democracy based on the idea that the nation and the state supersede everything else, a standpoint which it has adopted since the Treaty of Maastricht. With the right to be forgotten I and II, the First Senate has now also reacted to the European Court of Justice by suddenly committing itself to being the ‘guardian’ of European fundamental human rights and even threatening to revert to its old ‘European-friendly’ Solange II rulings. This book’s principal argument is that all this reveals the Europhobic nature of the German Constitutional Court’s state theory, which results from outdated traditions in the German doctrine of constitutional law and from a lack of democratic theory. The recent rulings on the EU’s Charter of Fundamental Human Rights from November 2019 are just some of new additions to the eighth edition of this book.

scholarly journals So Long Solange? The PSPP Judgment of the German Constitutional Court and the Conflict between the German and the European ‘Popular Spirit’

2021 ◽  
pp. 1-34
Author(s):  
Peter HILPOLD
Keyword(s):  
Legal Reasoning ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
Mutual Respect ◽  
Court Of Justice ◽  
European Court ◽  
Economic Background ◽  
German Constitutional Court ◽  
The Relationship

Abstract The judgment by the German Constitutional Court (‘BVerfG’) of 5 May 2020 has caused a stir all over Europe. The relationship between the BVerfG and the European Court of Justice (‘ECJ’) has never been an easy one, especially after the Solange judgment of 1974. The Solange jurisprudence has, however, not only been synonymous with conflict and rivalry but also for dialogue and, eventually, mutual respect. With the PSPP judgment, this dialogue seemed to have found an end, while by the order of 29 April 2021 the BVerfG appears to have returned to a more conciliatory tone. Nonetheless, the disruption between Karlsruhe and Luxembourg persists. In this article, the PSPP judgment will be examined in detail, presenting it as the last step of long, contorted jurisprudence. It will be shown that the rupture that occurred in May 2020 was technically unnecessary and rather the result of deep-rooted cultural conflict with a clear economic background. The legal reasoning on both sides—that of the BVerfG and that of the PSPP judgment's most outspoken critics—is problematic at best. While for the time being the BVerfG seems to have learnt the lesson from the conflict provoked by its own judgment, the underlying, substantive conflict is still unresolved. It will be shown that this conflict can only be solved on a political level. Thereby, cultural pre-concepts will have to be overcome. Uncompromising reliance on a national ‘popular spirit’ (Volksgeist) will not offer a way out but neither will, for the time being, exclusive reference to a European Volksgeist ignoring Member State realities. The ‘weighing and balancing’ the BVerfG has missed in the previous Weiss ECJ preliminary ruling (again on the PSPP programme) will have to take place on a far broader scale.

After the OMT Case: The Supremacy of EU Law as the Guarantee of the Equality of the Member States

2015 ◽  
Vol 16 (4) ◽  
pp. 1003-1023 ◽  
Author(s):  
Federico Fabbrini
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Eu Law ◽  
Member States ◽  
European Central ◽  
Court Of Justice ◽  
European Court ◽  
Cherry Picking ◽  
German Constitutional Court ◽  
The Eu

This article analyzes the recent judgment of the European Court of Justice (ECJ) inGauweiler, answering the first preliminary reference ever by the German Constitutional Court (BVerfG), on the legality of the Outright Monetary Transaction (OMT) program of the European Central Bank (ECB). As the article explains, the ECJ rejected any possible claim of illegality of a key program devised by the ECB at the height of the Euro-crisis. However, because the BVerfG had defined the OMT program as ultra vires, and had threatened to strike it down if the ECJ did not reach the same result, the article defends the principle of the supremacy of European Union (EU) law, indicating that a possible nullification of the OMT program by the BVerfG would be clearly unlawful. To re-affirm the supremacy of EU law, the article argues that this principle is functional to ensure the equality of the member states before the law, preventing each country of the EU from cherry-picking which provisions of EU it likes or not. As the article suggests, respect of the principle of the supremacy of EU law – including by the BVerfG – is ultimately in the interest of every EU member state, including of Germany.

Karlsruhe Makes a Referral

2014 ◽  
Vol 15 (2) ◽  
pp. 107-110 ◽  
Author(s):  
Udo Di Fabio
Keyword(s):  
European Union ◽  
Central Bank ◽  
European Central Bank ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
European Central ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
First Time

On 7 February 2014 in the OMT Case, the German Constitutional Court in Karlsruhe referred a question about the interpretation of Treaty law to the European Court of Justice for the first time. The question was whether the European Central Bank exceeded its mandate when it declared, in September 2012, that it was prepared to make emergency, unlimited purchases of specific states' bonds. Some view the referral as a genuflection acknowledging the judicial superiority of European Union jurisprudence. Has the Karlsruhe Court relinquished its role as “the final arbiter” and thereby surreptitiously bid farewell to the German sovereignty that the same Senate of the Constitutional Court so vigorously endorsed in the Lisbon Treaty Case in 2009?

A Constitutional Court for Europe?

2004 ◽  
Vol 6 ◽  
pp. 1-34
Author(s):  
Anthony Arnull
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Council ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Order ◽  
Court Of Justice ◽  
European Court ◽  
The Future ◽  
Draft Constitution

The purpose of this article is to consider the effect of the draft Treaty establishing a Constitution for Europe on the European Court of Justice (ECJ). At the time of writing, the future of the draft Constitution is somewhat uncertain. Having been finalised by the Convention on the Future of Europe in the summer of 2003 and submitted to the then President of the European Council, it formed the basis for discussion at an intergovernmental conference (IGC) which opened in October 2003. Hopes that the text might be finalised by the end of the year were dashed when a meeting of the IGC in Brussels in December 2003 ended prematurely amid disagreement over the weighting of votes in the Council. However, it seems likely that a treaty equipping the European Union with a Constitution based on the Convention’s draft will in due course be adopted and that the provisions of the draft dealing with the ECJ will not be changed significantly. Even if either assumption proves misplaced, those provisions will remain of interest as reflecting one view of the position the ECJ might occupy in a constitutional order of the Union.

The German Constitutional Court and Preliminary References—Still a Match not Made in Heaven?

2015 ◽  
Vol 16 (6) ◽  
pp. 1491-1508
Author(s):  
Eva Julia Lohse
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
In The Beginning ◽  
The Eu

So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth:BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by theBVerfGabout the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of theBVerfGremain the same after this single referral and offer explanations as to why theBVerfGhad for nearly sixty years not referred a question to the former European Court of Justice (ECJ).

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