Article 23 of the Basic Law for the Federal Republic of Germany
The Article 23 of the Basic Law for the Federal Republic of Germany as amended in 1992, as Europe article refers. In 1992 it was inserted and replaced the previous Article 23 , which limited the scope of the Basic Law to the "old" federal states , regulated accession to the Federal Republic and was deleted in 1990 with reunification . The new article paved the way for the Maastricht Treaty .
Legal meaning
Before Article 23 of the Basic Law was inserted, sovereign rights were transferred to the supranational communities ( EAG , EEC , ECSC ) in accordance with Article 24 of the Basic Law. Due to the increasing political interdependence of the member states and the growing competences of the communities, the international law enabling norm of Article 24 of the Basic Law was overstretched. It was only seen as an authorization basis for the transfer of sovereign rights to intergovernmental institutions. What is not regulated, however, is the limits, goals and principles with which this has to be done. With regard to the dynamic development of the EC and the newly created European Union as well as the legal training by the European Court of Justice ( ECJ ), an authorization basis that took into account the so-called eternity clause was required. The law amending the Basic Law of December 21, 1992 ( Federal Law Gazette I, p. 2086) is closely related to the ratification of the Treaty on European Union (also known as the Maastricht Treaty ), which came into force on November 1, 1993 stepped.
The most important norms are:
- Establishing the principle of subsidiarity
- Binding of fundamental rights of the EU (reference to the Solange II decision of the Federal Constitutional Court )
- Appropriate participation and involvement of the federal states (see Article 23 paragraphs 2, 4, 5 and 6 of the Basic Law)
- Obligation to participate in the realization and development of the European Union (determination of state objectives )
There was disagreement in jurisprudence as to whether the transfer of sovereign powers according to Article 24 of the Basic Law itself constitutes a constitutional amendment. After that, there were essentially two views. One view saw Article 24 of the Basic Law as conclusive and rejected a review on the basis of Article 79 of the Basic Law. The other view, however, considered Article 79 of the Basic Law to be applicable in parallel. The constitution-amending legislature put an end to this dispute with regard to the EU : Article 23 paragraph 1 sentence 3 GG explicitly declares Article 79 paragraph 2 and 3 GG to be applicable.
Article 23 (1) sentence 2 of the Basic Law contains the authoritative basis for the transfer of sovereignty. The federal government can therefore transfer sovereign rights with the consent of the Bundesrat. The transfer therefore does not mean that the Federal Republic of Germany will permanently and for the future cede the competence of legislation to the EU. Rather, the Federal Republic renounces the exercise of its competence and tolerates and recognizes the effect of the European legal acts.
Symbolic power of the article
Even if the article is quite general at first glance, it is unique in the history of the Federal Republic and for the first time represents a clear commitment to European unification at the constitutional level. In this context, it is also a clear sign of the Europeans Neighboring countries that a reunified Germany is fully committed to the peaceful democratic unification of Europe. The international lawyer from Würzburg, Dieter Blumenwitz (1995), points out, despite all integration friendliness, that European integration is always linked to national law: “The Federal Republic cannot participate in the development of every European Union. It can only support a Europe which, with regard to its essential constitutional principles, maintains homogeneity with the national constitutional reality of the Basic Law . "
Footnotes
- ↑ Federal Law Gazette I p. 2086
- ↑ Refers to Art. 23 in the version valid until October 3, 1990 "due to accession" and repealed by Art. 4 No. 2 Unification Agreement of August 31, 1990 ( Federal Law Gazette II p. 885, 890 ).
