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[The first part of this article can be found here].
5.- German sovereignty overrides Community primacy:
In the first of legal grounds under which the German Federal Constitutional Court decides in favour of the plaintiffs as per the Weiss judgment of 5 May 2020, the principle of sovereignty is clearly proclaimed (paragraph 99). No wonder, as such principle is constitutionally established by Article 20(2) of the Bonn Basic Law of 1949, as follows:
“All State power emanates from the people.”
More particularly, the principle is that of popular sovereignty, differing from national sovereignty where power emanates from the nation; though both share the very same foundation, that is, the concept of modern sovereignty, invented by the French philosopher Jean Bodin and defined as the “absolute and perpetual power of a republic”.
According to the federal republic created in Germany after World War II, the German people are the original holders of political power, which they principally transmits to the State – a doctrine, by the way, far opposed to Christendom, but that would take us away from our analysis here.
The transfer of power from the people to the German State is not conclusive, since transmitter and receiver continue to exercise political power, albeit in different ways; indeed, the same Article 20(2) of the Bonn Basic Law then explains:
“This power is exercised by the people through elections and voting and through the specific bodies of the legislative, executive and judiciary.”
Thus, although the State holds such power coming from the German people, political power is still exercised by the German people directly through their participation in elections; and, indirectly, through the acts of the mentioned State bodies.
In line with the principle of popular sovereignty as laid down in the Bonn Basic Law, the constitutional magistrates in Weiss develop the following reasoning:
“[Corresponding to the principle of popular sovereignty] is the right of citizens to be subject only to those public authorities which they can legitimise and influence.”
The adverb “only” is in our opinion rather crucial, since it implies that German citizens are not subject to any public authority which they cannot legitimise and influence.
This is quite logical since, as holders of political power, they are subject to public authorities as long as they have intervened in the election of such authorities, which are thus legitimised by the German people and which the German people can continue to influence.
And if these implications of the principle of sovereignty on behalf of the German people were not strong enough, the Karlsruhe judges add:
“[The principle of popular sovereignty] requires that any act of public authorities exercised in Germany can be traced back to its citizens.”
Therefore, there should be no exercise of public authority in Germany that cannot be traced back to the decision of German citizens. We might add that there should be no exercise of public authority in Germany for which such authority cannot be held accountable by the German people.
But the Federal Constitutional Court still makes a third corollary explicit, concerning political representation, as derived from the principle of popular sovereignty:
“This prohibits subjecting citizens to a political authority from which they cannot escape and over which they cannot in principle exercise influence, freely and equally, both as regards their representatives as well as their substantive determinations.”
The German judges explain that the three statements set out above continue to apply with regards to the European Union and Germany’s integration in such international organisation.
That is indeed another important clarification, and they go on with a further specification of limits to EU action:
“The Basic Law does not authorise the organs of the German state to transfer sovereign powers to the European Union in such a way that the European Union is authorised, in the independent exercise of its powers, to create new competences in its favour.”
This statement is twofold. On the one hand, it denies the possibility of the European Union creating for itself competences other than those assigned by the sovereign member states.
Let us here recall that the principle of primacy of EU law was created by the Court of Justice of the European Union through its Costa/ENEL judgment of 1964. This may not strictly imply a creation of competences, but there is no doubt that, indirectly, the fact that an EU institution (and not the member states) grants supremacy to Union law, thereby attributing greater powers both to the co-legislating institutions of the Union (Parliament and Council), to the one in charge of proposing and applying Union law (Commission) and also to the highest authority responsible for legal interpretation (Court of Justice of the European Union), amounts to creating greater power by their own decision, that is independently. At the end of the day, this is precisely what the Constitutional Court of Karlsruhe recalls that the European Union cannot do, in accordance with the principle of popular sovereignty proclaimed by the German Basic Law. Thus Weiss, with its ruling on popular sovereignty, contains in itself a sweeping element against any pretention of EU law primacy.
However, it might seem striking that the same judgment admits the existence of a certain transfer of sovereign powers to the European Union; albeit on condition that such transfer is made with a scope and form accepted by the Bundestag, or Federal Diet.
Consequently, the main body producing national legal norms as well as such legal products, including those containing transfer of sovereign powers or faculties, are still vested with a higher rank than the legislative exercise on behalf of the EU institutions as per such a transmission.
For both of these reasons – the impossibility for the European Union to independently exercise its powers to create new competences in its favour (including, indirectly, the jurisprudential creation of the principle of primacy) and the conditioning of the transfer of sovereign powers to the acceptance by the main legislative State body – the principle of popular sovereignty in Germany clearly overrides any and all primacy claim in favour of European Union law.
6.- Supremacy belongs to the Basic Law and to the German national bodies:
According to the Federal Constitutional Court there are four German institutions that control acts of the European Union – the Federal Government, the aforementioned Bundestag, the Bundesrat, or Federal Council (upper house) and, of course, the German Federal Constitutional Court itself.
The first three are responsible, indistinctly, for three possible means of control, namely:
“To supervise whether the institutions, bodies, entities, offices and agencies of the European Union comply with [Germany’s] European integration programme, to refrain from participating in the adoption and implementation of measures that exceed the limits of that programme and, where such measures constitute a manifest and structurally significant excess of the European Union’s competences, to actively take decisions that ensure the conformity of the said integration programme and the respect of its limits“.
As for the German Federal Constitutional Court, it also holds supremacy over the entities of the European Union in the sense that it “carries out an ultra vires review to assess whether the above requirements are met“. In other words, Weiss reminds the supremacy of four national institutions over each and every European instance. The reader can easily link this supremacy with the principle of popular sovereignty as enunciated above.
But the Karlsruhe court explicitly adds a quality of the political edifice created after World War II: “The supremacy of the Constitution“.
That is, the Bonn Basic Law contains provisions (and hence a fair analogy can be inferred for all other member states) that hold a primacy over the entire compendium of EU rules, as adopted in Brussels and Strasbourg and interpreted in Luxembourg.
With regards to Germany’s position within the European Union (and we insist on the necessary analogy to be made to all other equal member states under the law), this national supremacy includes “the implementation and further shaping and development of the integration programme to ensure that its limits are respected“.
Thus, the Bonn Basic Law operates as a limit above which the law of the Union cannot be enacted.
Logically, the content of European law cannot contradict or exceed the national development of the constitutional precepts that enjoy supremacy.
We insist that these limits are controlled by the mentioned high national institutions; and that such limits are determined by national law, as we proved in the first part of this article, which therefore take precedence over the acts of EU authorities and any potential implications of Germany as a member state of the Union (or, once more, of any other member state).
7.- A superior democratic legitimacy confirms national primacy:
Without this being an absolutely indispensable element according to the German Constitutional Court, Weiss nevertheless establishes a comparison between the democratic legitimacy of the Federal Republic instances and those of the European Union – resulting in a superiority of the former, also from this point of view.
Let us examine the exact terms of the Karlsruhe judges:
“This applies to an even greater extent when public authority is exercised by entities which have only a weak relationship to democratic legitimacy“.
The Federal Constitutional Court does not deny a certain democratic legitimacy on the part of the EU bodies. However, such legitimacy is “weak”, which further amounts to national preponderance ut supra. Basically, the ruling in Weiss links democratic legitimacy on behalf of the German people with German constitutional identity, which excludes primacy of EU law as a prerequisite for European integration.
Even if the democratic quality of European institutions were more solidly founded, the elements of popular sovereignty, control by the national institutions and supremacy of the Bonn Basic Law would still apply. But the lack of a sound democratic legitimacy that the Karlsruhe court denounces with respect to the institutions, bodies, offices and agencies of the European Union only confirms the secondary position of their action with respect to the national level, which holds in any case the first rank.
For practical purposes, a European Commission elected through a more egalitarian and transparent manner and endowed with a less bureaucratic and secretive modus operandi is certainly desirable. Nevertheless, such eventual improvement would not imply a determining impact on the EU claim of legal supremacy over member states.
It provokes a certain awe to read that still in 2020 the Karlsruhe court needs to point out a defect of representation on behalf of EU bodies. In their most famous ruling on the principle of primacy, the 1974 Solange judgment, the German magistrates had already warned about EU authorities lacking the democratic level that the Federal Republic demanded in order for the entire content of the Basic Law to yield hypothetically to supranational provisions.
Almost fifty years later, the highest legal authority of the German nation still rates the European democratic quality as insufficient. Solange‘s assumptions and skepticism about primacy have not changed. From which we can deduct that Germany, the richest state in the European Union, leads national Euroscepticism, ahead of Poland, Hungary, Romania, Denmark or the Netherlands, which have also elaborated on the subject.
8.- Primacy of application does not entail primacy of validity:
On two occasions throughout the entire judgment, the German magistrates mention the term “precedence of application” (Anwendungsvorrang) as accorded to European Union law.
Although these two references can be qualified as obiter dicta, the reader will wonder what they entail: has precedence been accorded, or has it not, to EU law?
Even if EU primacy was invented as an unjustifiable fantasy by the Court of Justice of the European Union, to what extent has Germany accepted it, and to what extent could it be assumed that other nations feel dragged by such a constraint, in order to accept a level-playing field among the twenty-seven member states?
The Costa/ENEL judgment, where the Court of Justice of the European Union conceived the principle of primacy of EU law, contained the term “Vorrang” in its official German version, “primacía” in the Spanish text, or “supremacy” in English.
But Vorrang is not the same as Anwendungsvorrang; the former constitutes the genus and the latter the species. Indeed, Germanic doctrine distinguishes two types of precedence, priority or primacy: the primacy of validity (Geltungsvorrang) and the primacy of application (the Anwendungsvorrang recognised by the authors of Weiss).
Primacy of validity is a form of collision resolution between two legal rules whereby one of them is ignored because only the one considered superior or possessing primacy is used.
In the case of primacy of application, a collision resolution rule (or conflict norm, although it is more properly a rule than a norm) is used to determine which of the two legal precepts needs to be applied and to what extent.
And this is what the Karlsruhe judges have done. The rule of conflict is the Bonn Basic Law itself, which determines the conditions under which national law may yield to European Union law, as we have shown.
It should be borne in mind, once again, that the German Constitution is established as the rule of collision and the Federal Constitutional Court as the interpreting and implementing authority for this rule, so that the proclaimed primacy of application (which is not primacy) is justified in its own terms.
9.- The solution of coordination belies primacy:
A final consideration disproves, both legally and factually, the claim of EU law primacy within Germany and, consequently, throughout the entire Union.
After mentioning the precedence of application as explained above, the constitutional judges speak of “coordination” between the national and the European levels. But coordination corresponds to similar powers, since primacy of one over the other would more properly correspond to subordination, and not coordination.
Along a similarly conciliatory line, therefore denying a European supremacy, the Constitutional Court of Karlsruhe goes on to add that tensions arising between national and European bodies must be resolved “in the form of cooperation… through mutual respect and understanding“.
The reader may well think that such terminology is more typical of politics than of legal science, since terms as coordination, cooperation, respect or understanding do not bring much legal certainty when resolving further cases.
Fortunately, the German magistrates do add relevant clues to the understanding and application of this principle of coordination.
On the one hand, the Court of Justice of the European Union must not apply Community law with disregard to the practice of national judges and courts. Let us refer here to the previous section and recall once more that there is no primacy of validity, however much Costa/ENEL started its cant of primacy (Vorrang) fifty years ago, in the generic and ambiguous form that we have outlined.
On the other hand, the Court of Justice of the European Union has jurisdiction to interpret and apply the Treaties of the Union in order to ensure the uniformity and coherence of European law, by mandate of the said treaties; but such jurisdiction is not exclusive, since “the Member States remain the masters of the Treaties and the European Union has not evolved into a federal State“.
This statement, which it is worth recalling comes from Germany, determines that if the member states remain the masters of the Treaties and there is no federal state superior to them, they also retain their respective competence to interpret such treaties.
Under normal circumstances, the national judicial authority should consider an interpretation of EU law by the Union Court of Justice as binding; however, when such an interpretation is “objectively arbitrary“, the national courts must take action to correct the excess.
On this occasion, the Federal Constitutional Court of Germany considers this to be the case; and consequently, it proceeds to interpret European law, most particularly with regard to the principles of attribution and proportionality, both of them fundamental pillars of EU law.
In finding that the principle of proportionality has not been complied with, the German Constitutional Court overrules the previous Court of Justice of the European Union’s judgment, considering it not binding and inapplicable in Germany.
The reader may evaluate whether calling the exercise by the European Court in Luxembourg arbitrary and disproportionate is in line with the cooperation, respect and understanding that must govern a “coordinated” conflict resolution at both two levels, national and EU.
In any case, we conclude that the denial to the claim of legal EU primacy coming from Germany through Solange in 1974 is confirmed by Weiss now; Professor Bill Davies summarised it masterfully when analysing the jurisdictional work of Karlsruhe:
“The Federal Constitutional Court, when called upon to pass judgment on European legal primacy, was caught in a storm of contrary perceptions in the post-war Federal Republic of Germany. The two options the court could choose – to deny primacy and protect national legal instruments, or to accept primacy and potentially undermine national constitutional integrity – were both equally unpalatable and conducive to debate and controversy. The Federal Constitutional Court ultimately chose the path of defending the national order.”
Miguel Toledano and Jorge Martínez are advisors for the European Conservatives and Reformists Group (ECR).