As was highlighted in the previous Chapter, Article 24 (1) covers situations where a treaty goes beyond creating traditional obligations for Germany as a signatory state. It applies to forms of international cooperation that require its members to surrender a measure of control to institutions outside of the national legal sphere by transferring sovereign rights to those institutions. The consequences are two-fold: at international level, the treaty effects the transfer of sovereign rights to the newly created interna- tional institutions; in the national sphere, the statute under Article 24 (1) not only pro- vides the international institutions with the authority to create acts which take direct legal effect within the German legal system, it also places an obligation on the German constitutional institutions and public authorities to ensure that those acts could take their full effect.345
An early opportunity for the Bundesverfassungsgericht to comment on the relationship between Germany and the recently created European Communities presented itself in
1967. The case concerned a constitutional complaint directed directly against an EEC regulation.346 The complainants argued that the Regulation had to be treated as if is- sued by the German authorities themselves since the European institutions had re- ceived their powers from the German state. This meant that the German authorities had to be considered directly accountable for the actions of the institutions they had thus empowered. From the complainants’ perspective, the relationship seemed to be that of agent and principal - with the principal being fully accountable for the actions of the agent. Consequently, the complainants considered a constitutional complaint to the Bundesverfassungsgericht the appropriate remedy against the violation of their fundamental rights by the Regulation in question.
The Bundesverfassungsgericht held the complaint to be inadmissible, insisting that the procedure only allowed acts of German public authorities to be challenged and that - in contrast to the views of the complainants - the EEC institutions did not qualify as such.347 The judges argued that the treaties had created their own legal order which was quite separate and independent from the German one.348 Rejecting the idea of a principal-agent relationship, the judges declared that the mere fact that the suprana- tional bodies of that separate legal order had received their powers from Germany did not make them ‘German’ institutions for the purposes of the Court’s rules of proce- dure. And even though the acts of the EEC institutions could only take effect within Germany due to the consent provided by the German parliament under Article 24, they did not become ‘German’ acts simply because they applied in Germany. To as- sume otherwise would not only hopelessly blur boundaries necessary to determine the scope of the Bundesverfassungsgericht’s jurisdiction349, it would also circumvent the treaties’ own system of remedies which was intended to cover precisely the situation at hand. As a result, direct challenges against European legislation were inadmissible. At the same time, the judges hastened to add that this decision should not be taken as precluding a review of EEC law with regard to the fundamental rights guarantees of the
346
BVerfG, ‘EWG Verordnung’ [1967] BVerfGE 22, 293.
347
ibid 295.
348
ibid 296.
Grundgesetz in the context of a case that was otherwise admissible.350 This conceptual- isation of how the European and German legal sphere interact has become the stand- ard formula of the Bundesverfassungsgericht used in cases from Solange I in 1974 to
Mangold/ Honeywell in 2010.351 It also laid the foundation of the notion of the Mem- ber States being ‘masters of the treaties’ coined later on in the decision on the Maas- tricht treaty.352
In a case in 1971, the Court clarified further what the transfer of rights under Article 24 entailed for the German legal system. A company had brought a constitutional com- plaint against a judgment of the Federal Tax Court that had used a decision of the ECJ interpreting Article 95 and 97 of the EEC treaty to override certain provisions of the German tax statutes applying to the company’s activities. The complainants argued that such behaviour violated the doctrine of separation of powers as laid down in the
Grundgesetz - such adjustments constituted amendments of a statute which could only
be done by the legislative and not by the judiciary. The Bundesverfassungsgericht re- jected the complaint by arguing that the Federal Tax Court had ‘merely drawn the con- sequences’ of the ECJ’s decision and that such adjustment were well within the powers of the judiciary.353 Indeed, the Federal Tax Court had only done what was its duty un- der Article 24:
“… Article 24 Abs. 1 GG besagt bei sachgerechter Auslegung nicht nur, daß die Übertragung von Hoheitsrechten auf zwischenstaatliche Einrichtungen über- haupt zulässig ist, sondern auch, daß die Hoheitsakte ihrer Organe, wie hier das Urteil des Europäischen Gerichtshofs, vom ursprünglich ausschließlichen Ho- heitsträger anzuerkennen sind. Von die- ser Rechtslage ausgehend müssen seit
“… Article 24 (1) Basic Law, on a proper interpretation, says not only that the transfer of sovereign rights to inter-governmental institutions is permissible as such but also that the sovereign acts of the organs, such as the judgment of the European Court of Justice here, are to be recognized
by the originally exclusive bearer of sovereignty. On the basis of this le-
350
ibid 299.
351
BVerfG, ‘Solange I’ (n 36); BVerfG, ‘Mangold/ Honeywell’ [2010] BVerfGE 126, 286.
352
BVerfG, ‘Maastricht’ (n 38).
dem Inkrafttreten des Gemeinsamen Markts die deutschen Gerichte auch sol- che Rechtsvorschriften anwenden, die zwar einer eigenständigen außerstaatli- chen Hoheitsgewalt zuzurechnen sind, aber dennoch aufgrund ihrer Auslegung durch den Europäischen Gerichtshof im innerstaatlichen Raum unmittelbare Wirkung entfalten und entgegenstehen- des nationales Recht überlagern und verdrängen; denn nur so können die den Bürgern des Gemeinsamen Markts ein- geräumten subjektiven Rechte verwirk- licht werden. …”
gal position, since the entry into force of the Common Market the German courts must also apply legal provisions which, though attributa-
ble to an autonomous sovereign power outside the State, do never-
theless on the basis of their interpre- tation by the European Court of Jus- tice develop direct effect within the
State and override and displace con-
trary national law; for it is only in this way that the subjective rights al- lowed citizens of the Common Mar- ket can be realized. …”354
As can be seen, the Bundesverfassungsgericht placed great emphasis on the duties of the German courts to give effect to the acts of the European institutions in the German legal system. However, the national courts, which were at the heart of this process, came to have grave concerns about the compatibility of those acts with fundamental principles of the Grundgesetz and began making references to the Bundesverfas-
sungsgericht in order to have pieces of European law reviewed. The reference proce-
dure in Article 100 (1) Grundgesetz serves a similar function to that laid down in Article 267 TFEU: since ordinary German courts do not have jurisdiction to set aside legislation they consider unconstitutional, they have to make a reference to the Bundesverfas-
sungsgericht. The Bundesverfassungsgericht will then conduct a review of the statute
or the provision in question and should the statute be found to violate the Grundge-
setz, the Court has the power to declare it void. Such decisions bind all state bodies,
i.e. the ordinary courts as well as parliaments and governments at federal and Land level.355 In 1967, a regional tax Court made such a reference to have the Bundesverfas-
sungsgericht review Regulation 19/62/EEC.356 The arguments of the referring Court dif-
354 ibid 174, emphasis added. Quoted after the translation available at
<https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=590> accessed 15 April 2016.
355
§ 31 BVerfGG (Federal Constitutional Court Act)
fer from the human rights related arguments that have dominated the discussion since Solange I in that their main focus is the institutional structure of the EEC. From the re- ferring Court’s point of view, the secondary legislation enacted by the Council under then Article 189 EEC had to be classified as genuine legislative acts. However, since the whole Council was composed of representatives of the Member States’ executives, its involvement in genuine legislative activity constituted a violation of the principle of separation of powers. This violated the limits to integration set out in Article 79 (3)
Grundgesetz which in turn led to the unconstitutionality of the German statute ratify-
ing the EEC Treaty.357 With that statute void, the EEC had no valid authority for its ac- tivities - the ‘permission’ under Article 24 to use the sovereign rights with effect for Germany having been lost, as it were.
The Bundesverfassungsgericht rejected the reference on a technicality and did not en- gage with the arguments of the referring Court regarding the institutional structure. Indeed, even though similar arguments were put forward by referring courts and ap- plicants in several cases over the years, the Court did not engage with them at all until much later in its Maastricht decision and even then only in passing.358 Instead, the Court stressed that the ratification had been the moment in time at which the institu- tional structures and decision-making processes could - and should - have been influ- enced to make sure they complied with the requirements of the Grundgesetz.359 Once that moment had passed, the only option left was for the German courts to try to pro- tect the individuals in Germany from having to suffer under the consequences of those structural deficits the political institutions had not taken the necessary precautions to prevent.360 In other words: the Bundesverfassungsgericht had more or less ‘banished’ European law to its own legal ‘sphere’, where it enjoyed a certain amount of autono- my. The Court followed through on this line with its claims to have retained review powers regarding fundamental rights protection, ultra vires actions and violations of
357
ibid 143.
358 Not until BVerfG, ‘Maastricht’ (n 38) 187. 359
BVerfG, ‘Eurocontrol I’ (n 319) 28.
360
BVerfG, ‘Solange I’ (n 36); as was commented at the time by Hans D Jarass, ‘Artikel 24’ in Hans D Jarass and Bodo Pieroth (eds), Grundgesetz für die Bundesrepublik Deutschland: Kommentar (1st edn, CH Beck Verlag 1989) para 10.
the Grundgesetz’s identity.361 True to form (cf. Chapter III), the Court chose what it considered the fastest and most effective way to deal with the problem, invariably fa- vouring the legal over the political option. Instead of waiting until such time as the
Bundesregierung had managed to use its influence at European level to effect the de-
sired changes to the institutional structures362, the Court proceeded to provide itself the protection it considered necessary. In doing so, it also established itself as a power- ful veto player in opposition to the European – and German – political institutions, the same position it had shaped for itself in the purely national context.
Overall, in the Court’s interpretation of the Grundgesetz, the ratification of the NATO treaty was not in any way different to the ratification of the European treaties: both had created non-German institutions which had been authorised to create legally bind- ing acts that reached directly into the national legal sphere without any further acts of implementation or transformation by the German institutions being necessary. In its decisions, the Bundesverfassungsgericht did not separate out the EEC from the overall context of Article 24. For example, it built on its decision in Solange I (1974) to decide a complaint regarding Eurocontrol (1981) which in turn fed forward into a decision on NATO (1984) and later into Solange II (1986)363, even though the integration process for those three organisations had been vastly different. For the Court, however, they seemed to be merely three examples of the many forms international cooperation could take and where the Court had to deal with the implementation.