Writing for BrusselsReport.eu, Ravel Meeth, the Chairman of German NGO Bündnis Bürgerwille or the “Citizens’ Will Alliance”, which initiated the lawsuitchallenging German ratification of the EU’s €750 billion “recovery fund”, discusses the infringement procedure launched by the European Commission against Germany
By Ravel Meeth (Chairman of German NGO Bündnis Bürgerwille)
The infringement procedure which the European Commission launched against Germany last week raises the ultimate question of law and power in the EU. This is because it threatens to deprive national Constitutional Courts from the possibility to intervene against encroaching behaviour by EU institutions, at least when the so-called “core of identity” of the national constitution is violated.
What prompted the EU to make this provocative decision is beyond our knowledge. What is clear, however, is that self-confident member states who value their sovereignty should now be alarmed. Those that do not want to sink to the level of a subordinate member state should not allow this decision by the EC to remain unchallenged. Here, the Commission is stirring up new conflicts that are difficult to settle at a time when it really should have other priorities.
Does EU law take precedence over national law?
At the heart of the matter is the following: The EU was founded on the basis of international treaties between sovereign nation states. The EU is therefore not an institution that organically emerged. It derives its democratic legitimacy from the will of its founders.
For many years, however, the EU has been disputing this precise assertion. The European Court of Justice (ECJ) in particular has developed the principle that EU law is generally superior to national law, so that the ECJ’s case law is binding on all national courts.
"Primacy of EU law is being undermined because of the EU’s own actions"
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Primacy of EU law is accepted in principle by the member states. They even accept constitutional provisions and provisions on fundamental rights to be “overlaid” by EU law. An example of this is the fundamental right to political asylum under Article 16a of Germany’s Constitution, or “Basic Law”. Since the EU has developed its own asylum law through its so-called Dublin Regulations, the much more generous Dublin Regulations and not the German Constitution are authoritative in Germany.
The infringement proceedings against Germany threaten the “identity core” of the German Basic Law
The German Constitutional Court accepts primacy of European law, except for one case. It denies the primacy of EU law where the so-called “core of identity” of the Basic Law would be violated.
This core of identity includes human dignity (Article 1 of the German Constitution), the principle of democracy and the principle of the welfare state and the federal order (all enshrined in Article 20).
This is the case because Articles 1 and 20 are subject to the so-called “eternity clause” of the German Constitution, which is laid down in Article 79, paragraph 3 GG. The clause sets out that certain fundamental principles of Germany’s democracy can never be removed, not even by the Bundestag or Bundesrat. Therefore, according to the German Constitutional Court, the inalienable core of identity of the German state can also not be left at the discretion of EU institutions.
Another consequence of the eternity clause is that the EU is only allowed to exert those powers and competences that have been democratically transferred to it by the German Parliament. Accordingly, the German Constitution also bans the EU from having any powers to define its own tasks or from being able to enact laws that are not democratically supported by member states.
The German Constitutional Court’s ruling against ECB government bond buying as the ground for the proceedings
Last year, the German Constitutional Court ruled that the ECB’s programme to purchase government bonds exceeded its democratically awarded mandate. Because of an EU institution acting outside the competences awarded to it, the German Constitutional Court ruled that the core of identity of the German Constitution had been violated.
At the same time, it also ruled that the ECJ had acted “ultra vires “(beyond its powers) by approving the bond-buying without examining the matter of distribution of competences in more detail.
The European Commission is now using this purported “disregard” for ECJ case law as the grounds for infringement proceedings against Germany. Should these proceedings be successful – and should the national constitutional courts comply –national constitutional courts will no longer be able to protect the core identity of their constitutions in the future.
Interpretation of European law would then be the preserve of the ECJ alone, whereby all national constitutional provisions would be irrelevant. It would mean that the EU would become a real independent legal entity, enabling it to justify all of its legal acts by its own institutions.
All of these legal acts would be binding for member states but they could no longer be reviewed by national courts to check whether they are at least in line with the most fundamental constitutional principles.
As I wrote, this constitutes the ultimate question of law and power in the EU. The European Commission is leveraging the foundations of the Union in a bid to expand its powers. However, EU member states are unlikely to simply comply with the European Union’s absolute claim to supremacy. Therefore, the Commission is really provoking an unseen constitutional crisis in Europe.
Until now, the matter of who should have the last word in legal matters in the EU was kept open and left to a cooperative understanding between the ECJ and the national constitutional courts. This is now apparently coming to an end.
Will the German Government now defend the German Constitution?
The European Commission has provided the German government with two months to reply. As a result, it will need to take a stand in the middle of the campaign for the September Bundestag elections on whether the German Constitutional Court is right to defend the core identity of the German Constitution: “Yes” or “No”. At least, this is far better than if a new – and possibly quite differently composed – German federal government would be allowed to complete this task after the election.