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

Saving Face? The German Federal Constitutional Court DecidesGauweiler

2017 ◽  
Vol 18 (1) ◽  
pp. 213-232 ◽  
Author(s):  
Asteris Pliakos ◽  
Georgios Anagnostaras
Keyword(s):  
Policy Decision ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
European Central ◽  
Court Of Justice ◽  
Critical Commentary ◽  
European Court ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

The German Federal Constitutional Court has issued its long-awaited judgment in theGauweiler Case.The Court ruled that the policy decision on the Outright Monetary Transactions programme (OMT programme) does not manifestly exceed the competences attributed to the European Central Bank (ECB) and does not manifestly violate the prohibition of monetary financing of the budget, if interpreted in accordance with the preliminary ruling of the European Court of Justice (Court). This article surveys the Court's decision and offers a critical commentary on this important case.

The ESM and the European Court's Predicament inPringle

2013 ◽  
Vol 14 (1) ◽  
pp. 113-139 ◽  
Author(s):  
Vestert Borger
Keyword(s):  
Euro Area ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Court Of Justice ◽  
European Court ◽  
The Future ◽  
Federal Constitutional ◽  
European Stability Mechanism ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

On 27 November 2012, the European Court of Justice (“the Court”) rendered its judgment in thePringlecase. Sitting as a plenum, which is extremely rare, the Court did what had been expected. Just as theBundesverfassungsgericht(German Federal Constitutional Court orBVerfG) had done two months earlier, it gave the go-ahead for the euro area's permanent emergency instrument, the European Stability Mechanism (“ESM”). With this decision, the possibility of granting assistance to financially distressed euro area Member States has now been secured for the future.

Das PSPP-Urteil des Bundesverfassungsgerichts: Umfang der Übertragung von Souveränität und Überprüfung von Ermessensgebrauch

IG ◽  
2021 ◽  
Vol 44 (3) ◽  
pp. 220-226
Author(s):  
Achim-Rüdiger Börner
Keyword(s):  
Member State ◽  
Constitutional Court ◽  
The Public ◽  
Court Of Justice ◽  
European Court ◽  
Federal Constitutional ◽  
National Constitution ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
The Eu

In its judgment of 5 May 2020, the German Federal Constitutional Court (FCC) has held that the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), which started in 2015, and the relevant decision of the European Court of Justice (ECJ) of 11 December 2018, holding that the programme is compatible with European Union (EU) law, are ultra vires acts. Indeed, this decision is based on a French understanding of discretion which has previously been adopted in the European Treaties and according to which discretion is controlled only for undue, illegal influence. Today, the Treaties have adopted a review of discretion under the aspects of suitability, necessity, and appropriateness. Moreover, criticism at the decision of the FCC neglects that the accession to and the membership in the EU have to observe the thresholds of the respective national constitution, as its violation is not and may not be expected by the Union or any other Member State. Ultra vires acts of the Union, which remain uncorrected by the Union itself, are subject to disapproval and rejection by the constitutional court of any Member State.

The Federal Constitutional Court's Lisbon Case: Germany's “Sonderweg” - An Outsider's Perspective

2009 ◽  
Vol 10 (8) ◽  
pp. 1263-1266 ◽  
Author(s):  
Alfred Grosser
Keyword(s):  
Coming Out ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Court Of Justice ◽  
European Court ◽  
Federal Constitutional

There is no cause for celebration: Instead, the judgement coming out of Karlsruhe must be seen as an expression of the Federal Constitutional Court Justices' fear of subjecting themselves to the European Court of Justice. Indeed, the judgment raises questions about Germany's commitment to Europe.

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.

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.

ECB, ECJ, Democracy, and the Federal Constitutional Court: Notes on the Federal Constitutional Court's Referral Order from 14 January 2014

2014 ◽  
Vol 15 (2) ◽  
pp. 147-165 ◽  
Author(s):  
Dietrich Murswiek
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
European Law ◽  
Government Bonds ◽  
European Central ◽  
Court Of Justice ◽  
European Court ◽  
Federal Constitutional

The European Central Bank's (ECB) program of purchasing government bonds, the OMT program (Outright Monetary Transactions Program), which was announced on 6 September 2012, is illegal. With this program, the ECB transgresses its powers. This is the central message of the Federal Constitutional Court's decision from 14 January 2014. However, the decision is not final. The Federal Constitutional Court has suspended the trial and has referred the matter to the European Court of Justice (ECJ) for a preliminary ruling. Only after the ECJ has examined the compatibility of the OMT program with European law will the Federal Constitutional Court pronounce its final judgment.

Compulsory Military Service and Equal Treatment of Men and Women – Recent Decisions of the Federal Constitutional Court and the European Court of Justice (Alexander Dory v. Germany)

2003 ◽  
Vol 4 (4) ◽  
pp. 299-308 ◽  
Author(s):  
Karen Raible
Keyword(s):  
Military Service ◽  
European Court Of Justice ◽  
Equal Treatment ◽  
Constitutional Court ◽  
Men And Women ◽  
Court Of Justice ◽  
Council Directive ◽  
Compulsory Military Service ◽  
European Court ◽  
Federal Constitutional

The European Court of Justice (ECJ) decided, in the case Tanja Kreil v. Germany, that Council Directive 76/207/EEC of 9 February 1976 (equal treatment directive) precludes the application of national provisions, such as those of German law, which impose a general exclusion of women from military posts involving the use of arms. The ECJ found that such policies violated the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Since this ruling both the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) and the ECJ have had to confront the question whether the German system of compulsory military service for men is compatible with Article 3.2 and 3.3 of the Grundgesetz (GG – German Basic Law) and the equal treatment directive.

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