As long as II
In the Solange II decision (decision of October 22, 1986, Az .: 2 BvR 197/83), the Federal Constitutional Court revised its case law on the examination of the compatibility of legal acts of the European Communities with German constitutional law . Deviating from the so-called “ Solange I decision” of 1974, the BVerfG now found that legal protection by the organs of the European Communities, in particular by the European Court of Justice (ECJ), meets the standards of German fundamental rights , so that the BVerfG in As a rule, they do not have to carry out their own test. This had far-reaching effects on the admissibility of constitutional complaints .
The decision
The decisive passage in the Solange II decision read:
“As long as the European Communities, in particular the case law of the Court of Justice of the Communities, guarantee an effective protection of fundamental rights vis-à-vis the sovereign power of the communities, which is essentially equal to the fundamental rights protection required by the Basic Law, especially since the essence of the fundamental rights is generally guaranteed, the Federal Constitutional Court will no longer exercise their jurisdiction over the applicability of derived Community law, which is used as the legal basis for conduct by German courts and authorities in the sovereign territory of the Federal Republic of Germany, and therefore no longer review this right against the standard of the fundamental rights of the Basic Law; Corresponding submissions according to Article 100, Paragraph 1 of the Basic Law are therefore not permitted. "
The BVerfG has thus recognized sufficient protection of fundamental rights at Community level by the ECJ. Since the Maastricht judgment (BVerfGE 89, 155), the division of tasks between the BVerfG and the ECJ has been referred to as a cooperation relationship. That means, now ...
"The Federal Constitutional Court exercises its case law on the applicability of derived community law in Germany in a 'cooperation relationship' with the European Court of Justice."
The limits
However, the reservation made in the resolution remains to be observed: The BVerfG only waives the exercise of its jurisprudence to the extent and only as long as sufficient protection of fundamental rights by the ECJ is generally guaranteed at community level and this protection reflects the essence of the fundamental rights and thus the minimum standard required by the Basic Law generally guaranteed.
Other constitutional controls
Since the Federal Constitutional Court in Solange II suspended the fundamental rights review of Union acts, subject to radical changes, it has established two further forms of review of Union acts in the Basic Law.
In the Maastricht ruling of 1993, the Federal Constitutional Court reserves the right to review in individual cases, based on constitutional complaints or litigation proceedings, whether a Union act is covered by the Union's basis of authorization or whether the Union is outside its authority ( ultra vires ). The prerequisite is that the action contrary to competency is obvious and the act of union is significant. In addition, the Union act must be interpreted in a Europe-friendly manner.
According to the Lisbon judgment of 2009, the “constitutional identity” of the Federal Republic of Germany is protected in the eternity clause of Art. 79 III GG. The court thus extends the guarantees beyond the principles explicitly mentioned there and in particular includes the right to vote according to Art. 38 GG as the core of the principle of democracy. The right to vote of the individual citizen would result in the fact that the “democratic self-shaping ability” of the German Bundestag elected by the citizens should not run empty. However, this would be the case if the Federal Republic were burdened to such an extent by Union legal acts that the Bundestag could no longer exercise its “overall budgetary responsibility”. In the decision on Outright Monetary Transactions ( OMT template ) of 2014, the BVerfG confirmed that it would carry out identity checks in individual cases. However, the ruling is accused of having abandoned all self-restraints from the Lisbon judgment without giving any further reasons, thus creating a popular lawsuit against Union acts.
Individual evidence
- ↑ Federal Constitutional Court: Solange II, BVerfGE 73, 339
- ↑ Federal Constitutional Court: Maastricht decision, BVerfGE 89, 155
- ↑ Unless otherwise stated, the presentation is based on: Hans-Georg Dederer : The limits of the prerogative of Union law . In: JZ , 7/2014, pp. 313–322 [314 f.]
- ↑ Werner Heun : An unconstitutional constitutional court decision - the order for reference of the BVerfG. In: JZ , 7/2014, pp. 331–337 [332]
