IV. CONSTITUTIONAL CORE AREAS AND
EUROPEAN LAW: GERMAN EXPERIENCES
Mr Mattias Wendel, Professor of public
law at the university of Leipzig
1. Introduction
The question of substantive constitutional limits in relation to the law of the European Union has long been of concern to the German Federal Constitutional Court (hereinafter FCC). However, in the FCC's case law or German doctrine this issue is not dealt with under a term directly equivalent to the French term “domaine régalien” or “marques de souveraineté”563(*). Instead, substantive constitutional limits vis-à-vis EU law are referred to as “constitutional core areas”, as the “inviolable core of the constitution” or simply and most frequently as “constitutional identity” (Verfassungsidentität). The normative basis of this concept is the so-called “eternity clause”, set out in the third paragraph of Article 79 of the German Basic Law. The provision, which was originally designed to prevent the restoration of a totalitarian regime,564(*) prevents the constitutional legislator from amending the Basic Law in a way that would violate the most fundamental constitutional principles, including human dignity and the principle of democracy. The German FCC has held repeatedly that Germany's participation in the European Union must remain within these limits.565(*)
In German constitutional law, the term identity does not come naturally, though, when discussing the protection of limits to European integration. Not only is it a term marked by ambiguity in the legal context.566(*) Specifically in German constitutional theory it is carrying totalitarian patterns of thought.567(*) Against this background it should not come as a surprise that Article 79(3) of the Basic Law does not make explicit reference to the term “identity”. Nor does the German EU clause, Article 23 of the Basic law, which addresses (and requires) Germany's participation in the EU and, in this context, refers to Article 79(3). It was the FCC which eventually (re-)introduced this term into German constitutional law568(*) in 1974 when mapping out the constitutional limits to European integration.569(*)
Protecting national constitutional identity against EU law is, however, by no means a unique feature of German constitutional law. Rather, constitutional identity has become a prominent pattern in the EU-related case law of the constitutional and highest courts of several EU Member States.570(*) However, the term is used as a common denominator for quite disparate concepts.571(*) This can be illustrated by comparing French and German case law. Whereas the French Conseil constitutionnel uses the concept of `identité constitutionnelle' to designate constitutional limits that can be overcome by constitutional amendment572(*) and, moreover, only cover constitutional rules or principles that are not equivalently protected under Union law,573(*) the German FCC understands constitutional identity to be limits that cannot be overcome by a constitutional amendment574(*). The situation is similar with Article 89 (5) of the French Constitution, which, although it has textual similarities with the German perpetuity clause, has been handled with considerable restraint by the French Conseil constitutionnel and, in particular, has not been interpreted either as a standard of review for the Conseil constitutionnel to review constitutional amendments or as a normative basis for French constitutional identity575(*).
The German FCC has given a particularly strong impetus for the discussion on the protection of national constitutional identity, since, in its much-described case law, it has spelled out the German eternity clause in quite some detail. This article will not re-tell this much described case law, but rather raise awareness that the FCC's reference to constitutional identity in the context of European integration is more multifaceted and complex - both in terms of procedure and effects - than often described. Academic focus regularly lies on the aspect of judicial contestation and defense, i.e. on the FCC's case law challenging the primacy of EU law within the framework of a so-called defensive identity review (abwehrende Identitätskontrolle) (II.). However, there is also a preventive dimension to the FCC's case law. At first sight, this preventive identity review (vorbeugende Identitätskontrolle) may not seem as spectacular as the (metaphorically worn-out) bark-bite game. Nevertheless, until today, the FCC has arguably constrained Germany's EU policy far more significantly by establishing grey zones of potential unconstitutionality within the framework of preventive identity review than by openly challenging the primacy of binding EU law on the basis of a defensive identity review (I.).
2. The preventive dimension
The so-called preventive identity review is carried out by the German FCC a priori with regard to (non-proclaimed) domestic statutes that would authorise Germany to ratify a treaty amendment or a comparable step of European integration. This type of review often relies on the constitutional complaint, i.e. a procedure by which individuals can take action against alleged violations of fundamental rights. In the context of European integration this mode of review is, in a nutshell, intended to preserve the citizens' “right to democratic self-determination” or “right to democracy”576(*) by preventing a conferral of competences to the EU that would result in the German federal parliament no longer having any essential decision-making powers, thus rendering the (national) principle of democracy meaningless. When erecting limits to further integration within the framework of preventive identity review, the FCC has created what I have previously tried to describe as a “fog of identity”577(*) (1.) which considerably limits the range of action of Germany's EU policy already in advance and irrespective of whether or not a (planned) policy act would ultimately be assessed as violating German constitutional identity (2.).
a) The “Fog of Identity”
The preventive nature of this type of identity review relates to both its procedural framing and its effects. Procedurally, preventive identity review is carried out a priori, i.e. at a point in time when neither the national statute of approval nor the treaty to be ratified578(*) have entered into force yet and, hence, no irreversible commitment under EU law has occurred. In this light, it is interesting to note that the German constitution lacks a procedure such as that contained in Article 54 of the French constitution. In Germany, in the field of European affairs, since the FCC's judgment on the Treaty of Maastricht,579(*) it is the procedure for judicial review of fundamental rights which has almost exclusively580(*) formed the basis of a priori review. Based on the FCC's approach, virtually every German citizen can have the FCC examine Germany's participation in further stages of European integration a priori on the basis of his or her right to vote under Article 38(1) of the Basic Law as protected, in its essence, by the eternity clause.581(*)
In terms of its effects, the FCC's case law on constitutional identity has so far barely restricted German EU policy by the operative parts of the decisions (Germany ratified all treaty amendments) but rather by creating a “fog of identity”, leading to a considerable degree of legal uncertainty. The FCC has marked, in abstracto, grey zones within which there is allegedly a certain risk that a further conferral of competences to the EU (or a certain way of exercising competences already conferred)582(*) could ultimately violate German constitutional identity. While legal uncertainty is a ubiquitous problem of law, the specific problem with the “fog of identity” as created by the FCC lies in the fact that it is not related to unconstitutionality in the ordinary sense, but to the inalienable core of the constitution. In sharp contrast to, say, the French Constitutional Council's approach, a violation of German constitutional identity could not be legalised by constitutional amendment and hence by the (inner-systemic) political process, but only by the abrogation of the Basic Law. One might object that this problem is a mere consequence of the fact that the Basic Law contains an eternity clause. What makes the difference, however, is not the mere textual existence of an eternity clause but the both far-reaching and vague manner in which this clause has been judicially exploited by the FCC. In this context, reference should again be made to the difference between the French Constitutional Council and the French Constitutional Council's handling of Art. 89 (5) of the French Constitution.583(*)
What then is so nebulous about the FCC's approach towards identity? It begins with the fact that the FCC has, in abstracto, enlisted several policy fields in which a further transfer of competences to the EU (or a specific exercise of already conferred competences by the EU) would entail an increased risk of ultimately violating German constitutional identity. Based on the premise that the German federal parliament must retain decision-making powers of “substantial political importance”,584(*) the FCC qualified these areas as “particularly sensitive” with respect to democratic self-determination and thus to the inalienable core of the principle of democracy.585(*) It is here that we finally encounter a conceptual proximity to the notion of a “domaine régalien” or, to use Jean Bodin's terms, or “marques de souveraineté”586(*). The FCC apodictically attributes identity-related “sensitivity” to “decisions on substantive and formal criminal law”, decisions “on the disposition of the monopoly on the use of force”, “fundamental fiscal decisions on public revenue and public expenditure”, “decisions on the shaping of living conditions in a social state” and also “decisions of particular cultural importance, for example on family law, the school and education system and on dealing with religious communities”.587(*) This enumeration is only the prelude to a more detailed, but still abstract list of sectors and aspects which the court considered to be potentially “integration-proof” (integrationsfest).588(*) The uncertainty already inherent in the case law was further fueled by media appearances of (active) constitutional judges, who made such astonishing statements as that the framework of the German Basic Law for further steps toward European integration was “probably largely exhausted”.589(*) This raised the question of whether new integration projects, such as a more social Europe with a uniform minimum wage or an establishment of genuinely European border protection or defence forces would have the constitutional plug pulled on them in advance in Germany. Based on the above, such projects would not obviously violate German constitutional identity. But they certainly fall into the grey area of a possible violation, regardless of their concrete design.
b) Consequences: `being on the safe side'
Against this background, “being on the safe side” has increasingly become a guiding paradigm of German EU policy. A striking example in this respect is the preventive effect of the FCC's case law on the political debate on Eurobonds in Germany.590(*) The inalienability of constitutional identity results in the preventive effect being particularly intense. Even projects that would ultimately pass the test of constitutionality are politically sacrificed to the (rational) effort by political decision-makers to avoid even entering the grey zones, in which there is a risk of violating constitutional identity. Hardly anyone would want to risk the failure of a European project before the FCC after years of negotiations. It was this pattern of thought that Christine Lagarde591(*) was confronted with in 2012 when she reportedly threatened to leave the room if she heard the word “Karlsruhe” once again.592(*)
One could argue that there is always the danger that political measures will be finally struck down as unconstitutional by a constitutional court. However, while a counter-majoritarian decision by the FCC could in turn be countered by a constitutional amendment and thus again by the political process, a violation of constitutional identity could not be overcome even by constitutional amendment but would necessitate a new constitution. In that sense, the German FCC has created a sort of “super counter-majoritarianism”.593(*) Ultimately and ironically the FCC's identity-based case law leads to quite the opposite of what the FCC invokes as the central reason for granting practically every eligible voter access to Karlsruhe in EU affairs, namely to “keep the democratic process open”594(*) and to “enable democratic decision-making processes”.595(*) In fact, the “fog of identity” unduly constrains the democratic process with regard to European integration.
A particularly relevant example for the uncertainty created by the FCC's grey zones is the field of Economic and Monetary Union (EMU). In the aftermath of the much-discussed ruling on the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB)596(*), some observers considered that the FCC's judgment could, by judicially contesting the ECB's role and policy, give an impetus to a future reform of the EMU597(*). A closer look, however, suggests that the FCC's case law in this field will ultimately rather constrain than catalyse reform projects relating to the EMU. The FCC may have “ruled out that the PSPP affects the constitutional identity of the Basic Law”598(*) with respect to specific aspects that had been subject to defensive identity review.599(*) However, the FCC by no means altered its general approach towards protecting the budgetary autonomy of the German federal parliament or give policymakers the green light to substantially reform or even transform the EMU. On the contrary, the FCC confirmed all its precedents since Greece & EFSF600(*) and ESM601(*) by which it had spelled out the protection of parliament's (national) budgetary autonomy vis-à-vis the EU.602(*) The nebulous constitutional restrictions formulated by the FCC on the basis of Article 79(3) of the Basic Law have at least catalysed the characteristic reluctance of some of Germany's key EMU decision-makers and may have served as a welcome constitutional pretext for politicians who have advocated strict austerity policies for political or economic reasons.
The FCC further expanded its already broad approach to preventive identity review with its controversial and narrow (5-3) decision on the Agreement on a Unified Patent Court of 13 February 2020.603(*) Individuals can now, through what is termed “review of the formal aspects of conferral” (formelle Übertragungskontrolle),604(*) invoke the essence of their right to vote to have the FCC check compliance with the relevant procedural rules, even if participation in the relevant European project would undisputedly not violate German constitutional identity in substance.605(*) According to the FCC's questionable approach, any act based on a conferral of powers that violates (domestic) procedural requirements for the conferral of competences to the EU606(*) is an ultra vires act and, as such, violates the very essence of the citizens' right to vote - even if the conferral does not affect the right to democratic self-determination in substance and would therefore be constitutional if the procedural rules had been followed. This new approach is particularly relevant in case of treaty revisions and “comparable regulations that amend or supplement” the Basic Law, where a constitutional majority of two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat is required.607(*) Again, the effect of this case law will be that decision-makers will want to “be on the safe side”,608(*) therefore seeking a qualified majority even if it is not constitutionally required and particularly hard to achieve in the present-day diversified political landscape. Again, the FCC case law on preventive identity review leads to the opposite of what it claims to ensure: it unduly constrains the political process instead of keeping it open, a fact also explicitly highlighted by the dissenting opinion of Judges König, Maidowski and Langenfeld.609(*)
3. The defensive dimension of constitutional identity
Whereas preventive identity review is exercised a priori to prevent a conferral of competences to the EU which would impair constitutional identity, defensive identity review is exercised a posteriori. It is a review mode intended to protect constitutional identity against EU law already in force, or, more precisely, against any act of German public authority which applies, enforces or implements existing EU law or is determined otherwise by it.610(*) The FCC, to this end, claims the right to decide, as a court of last resort, whether binding EU law should exceptionally be inapplicable in Germany because of a violation of German constitutional identity.611(*) Defensive identity review has become part of the FCC's defensive triad against EU law, overlapping both with ultra vires review612(*) and the Solange II case law relating to the protection of (domestic) fundamental rights613(*). The rather complex, often oversimplified, conceptual relationship of defensive identity review with both ultra vires (1.) review and the Solange case law (2.) shall be discussed in the following in the light of recent case law.
a) Identity review and ultra vires review: “two sides of the same coin”
The conceptual differences and overlaps between defensive identity review and ultra vires review have been carved out most clearly by the FCC's decision on the Banking Union of 30 July 2019 by which the FCC declared that Germany's participation in the adoption and implementation of the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM) did not violate the essence of the complainants' fundamental right to vote.614(*) The FCC highlighted that identity and ultra vires review had the same constitutional roots, but differed nonetheless in several respects.615(*) The most important difference certainly is the standard of review. While the relevant standard of identity review is a purely national one, composed of the principles that are protected in their inviolable core by Article 79 (3) of the Basic Law, ultra vires review is, in contrast, based on a hybrid standard of review. This hybrid standard boils down to the test of whether or not the EU has manifestly and in a structurally significant way exceeded its competences under the Treaties - Treaties to which Germany has agreed to on the basis of successive parliamentary statutes of approval. Despite being framed in terms of German constitutional law and having effect only on German authorities, ultra vires review necessarily implies an interpretation of EU law. If the FCC finds that the EU has acted ultra vires, it does not only claim a violation of the German constitution, but also claims, in substance, a manifest violation of EU law. Against this background, it can be argued that a national constitutional court declaring a violation of national constitutional identity is, from an overall perspective of EU law, the lesser of two evils, because it “only” points to a violation of (specific) national constitutional law in one single Member State and not simultaneously to an alleged transgression of competences at EU level relevant for all Member States.616(*)
In procedural terms, an ultra vires claim can be raised accessorily, for instance if an individual argues that his or her freedom of profession has been violated by a German court decision based on a judgment of the CJEU which is allegedly an ultra vires act (Honeywell case law).617(*). However, an ultra vires claim can also be made in a principal manner. In this scenario the complainants argue that the essence of their right to vote would be threatened by a supranational authority which, allegedly acting ultra vires, was not legitimized by the democratically approved conferral of competences to the EU. It is precisely in this scenario that identity review and ultra vires review coincide, because the essence of the right to vote is intrinsically linked to constitutional identity. To the extent that German citizens invoke their right to democratic self-determination in order to have the FCC conduct an ultra vires review, both modes of review are ultimately “two sides of the same coin”, as now also stated explicitly by the FCC.618(*)
Against this backdrop, both the PSPP-saga as well as the FCC's decision of 15 April 2021 on NextGenerationEU619(*) (NGEU) were framed predominantly620(*) in terms of a combined ultra vires and identity review. However, in the PSPP saga, the case could arguably have been framed more appropriately in terms of constitutional identity since the FCC was ultimately not so much concerned with transgressions of competences, but with minimum requirements under German constitutional law, namely the Rechtsstaatsprinzip.621(*) For procedural reasons, though, an identity review was practically ruled out622(*) which is why the FCC followed the path dependencies of ultra vires review. In the NGEU case, interestingly, the FCC did not apply identity and ultra vires review with the same level of intensity. It conducted a so-called “summary review”, i.e. a special standard in the context of interim legal protection, only with regard to identity but not ultra vires review. This approach resulted in the FCC not yet having to address the substance of the ultra vires claim, which the FCC apparently considered to be the more substantiated argument and in respect to which it may still wish to make a preliminary reference to the CJEU.623(*) The FCC thus established a new distinction between identity and ultra vires review in the context of interim legal protection.
A striking example illustrating both separation and overlap of identity and ultra vires review is the still pending624(*) Egenberger case.625(*) The case forms part of a broader struggle between the FCC, the German Federal Labour Court's (FLC) and the CJEU (as well as the ECtHR) on the relationship of church autonomy and anti-discrimination law.626(*) It is the first case before the FCC to combine all three modes of review. The first mode of review before the FCC is an accessory ultra vires review. Here, the ultra vires claim is raised accessorily to the assertion of a fundamental rights violation. The complainant, an organisation close to the Protestant Church, claimed that its (corporate) freedom of religion had been violated by the FLC's decision to require it to pay compensation for discrimination against Ms Egenberger on religious grounds during a recruitment procedure.627(*) Against the background that the FLC's decision was partly predetermined by the CJEU's Egenberger judgment,628(*) the complainant argued that the latter was an ultra vires act which should not be legally binding in Germany.629(*) The second mode is a defensive identity review, according to which the decision of the FLC, as partly determined by the CJEU's Egenberger ruling, violates German constitutional identity. To this end, it would have to be convincingly demonstrated that church autonomy belonged to the inalienable core of German constitutional identity, notably because it was inseparably linked to human dignity. For the purposes of this paper, I will not go into detail on this point, but will limit myself to the remark that this argument seems even less plausible than the accessory ultra vires claim and, if adhered to, would lead to an inflationary use of the concept of identity.630(*) The third and final mode consists of a combined identity and ultra vires review rooted in the principle of democracy. In rough terms, the complainants argue that the essence of their right to vote was violated because the CJEU had acted ultra vires by interfering in a non-conferrable area which was allegedly essential to democratic self-determination. As already stated, rules on the status of religious communities are qualified by the FCC as “particularly sensitive” with regard to democratic self-determination and thus to the inalienable core of the principle of democracy.631(*) Considering that in its Egenberger ruling the ECJ called for effective judicial review by national courts and interpreted provisions of EU secondary law by which the EU legislator established criteria for striking a balance between conflicting principles explicitly enshrined in EU primary law, it seems unconvincing that the Court allegedly deprived the German people of the basis of their democratic self-determination.632(*) Nevertheless, at this point we are back in the fog of identity again.
b) Identity review and the Solange case law
Defensive identity review has also become increasingly important in the field of fundamental rights, replacing the Solange case law in part. Since its widely noticed decision in European Arrest Warrant II of 2015633(*), the FCC examines alleged violations of (German) fundamental rights related to human dignity in each individual case, “regardless”634(*) of the Solange case law. Thus, even if a case is determined by provisions of EU law that effect full harmonisation, the FCC exercises fundamental rights review on a case-by-case basis if the complainant plausibly demonstrates that the inalienable core of fundamental rights inextricably linked to human dignity (Menschenwürdekern der Grundrechte) could have been violated.635(*) In contrast, on the basis of Solange II national fundamental rights can only be invoked against EU law or domestic measures determined by EU law if the complainant can plausibly demonstrate that the protection of fundamental rights at EU level has generally failed to meet the (constitutionally) required minimum level,636(*) i.e. that the protection of a specific fundamental right at EU level was generally not sufficiently guaranteed.637(*) To the extent that a defensive identity review - when based on human dignity - is declared admissible by the FCC, Solange II has ceased to apply. Consequently, from the perspective of individual complainants, it has become increasingly attractive to invoke the (narrow) Menschenwürdekern as a door-opener to the FCC in EU-related cases. This risks an inflation of constitutional identity and a process of depoliticisation in the course of which the boundaries between political responsibilities and the absolute protection of a life in dignity become increasingly blurred.638(*)
While defensive identity review has partly replaced Solange, the relevance of defensive identity review has itself been transformed by Right to be forgotten I and II, one of the most important developments in the history of the FCC's case law on fundamental rights.639(*) With this groundbreaking case law, the First Senate of the FCC has recognized EU fundamental rights as a standard of review for constitutional complaints and has allowed individuals to invoke EU fundamental rights directly before the FCC, to the extent that EU law determines the case.640(*) At first sight, this new case law does not alter the FCC's defensive triad (identity review - ultra vires review - Solange II), because it does not alter the scope of national fundamental rights in EU-related cases. Instead, it revolutionizes predominantly the relevance of EU fundamental rights before the FCC. Consequently, the FCC's First Senate declared that Right to be forgotten would not call into question either defensive identity review, ultra vires review, or Solange II.641(*) Nevertheless, defensive identity review could ultimately lose its importance in the field of judicial fundamental rights protection in Germany. Individuals don't have to primarily rely on the (narrow) inalienable core of German fundamental rights anymore but, instead, can now directly invoke EU fundamental rights before the FCC to the extent that EU secondary law does not leave discretion with regards to its implementation. Moreover, in cases concerning human dignity, such as European Arrest Warrant II,642(*) Right to be forgotten has a conflict-avoiding effect. It offers the possibility to apply the EU Charter of fundamental rights (CFR) as a first and regular step and, where appropriate, refer the matter to the CJEU for a preliminary ruling or, under certain conditions,643(*) oblige ordinary and specialized courts to do so644(*). Moreover, the FCC could also take the opportunity to help shape the interpretation of EU fundamental rights through its first word on the subject and on the basis of a long tradition of fundamental rights case law. Only in a second step would the FCC, then, exercise a defensive identity review. This is precisely what happened in European Arrest Warrant III.645(*) With this landmark decision the Second Senate followed its counterpart, the First Senate, and recognized EU fundamental rights as a standard of review. Whereas in European Arrest Warrant II (2015) the Second Senate applied the integration-proof standards of the Basic Law, it now applies EU fundamental rights as interpreted by the ECJ in Dorobantu, among others. Admittedly, the Second Senate does not completely abandon defensive identity review.646(*) However, the latter is shifted to a safeguarding secondary level and henceforth only runs in the background.647(*) In addition, the Second Senate determines the indispensable minimum standards under the Basic Law in accordance with the case law of the CJEU and the ECtHR and thus interprets the Basic Law in a manner open towards EU and international law.648(*)
Identity review could thus develop more into what it should actually be (if at all): an emergency brake, an ultima ratio. In this respect, the Second Senate completes the movement initiated by the First Senate away from overstretched integration-proof standards towards practically manageable fundamental rights standards.
4. Conclusion
To conclude, the case law of the German Federal Constitutional Court on constitutional identity has become increasingly multifaceted and complex in recent years. While defensive identity review has attracted much attention in both the media and academic circles, it is above all the “fog of identity” created by the FCC on the basis of preventive identity review that has considerably restricted the scope for action of German EU policy, including the reform of the Economic and Monetary Union. The FCC's judicial grey zone policy has led decision-makers, in an effort to be on the “safe side”, to refrain from agreeing to measures that could ultimately even pass the constitutionality test. The FCC has even extended this grey zone policy to procedural aspects of the legislative process. The result is exactly the opposite of what identity review, to the extent that it is based on the very essence of the right to vote, was supposed to secure: the democratic process is not kept open but is considerably restricted in terms of both content and procedure. To the extent that the FCC openly challenges EU law in force, defensive identity review has become the central instrument in the FCC's defensive triad. It overlaps significantly with ultra vires review and has also partially replaced Solange II. While cases such as Egenberger show the considerable operational “potential” of defensive identity review and its combination with ultra vires review, the new case law of the FCC's First Senate in Right to be forgotten and the fact that the Second Senate followed it in European Arrest Warrant III could at least temper the exercise of defensive identity review in the area of fundamental rights.
* 563 Cf. Bodin, Les six livres de la république, 10th ed. 1593 (reprint 1986), Book I, chapt. XX, 295 (306, 309).
* 564 See the dissenting opinion of Judge Gertrude Lübbe-Wolff in the Federal Constitutional Court, 18 July 2005, Case 2 BvR 2236/04, European arrest warrant I, para. 178.
* 565 See, pars pro toto, FCC, 30 June 2009, Cases 2 BvE 2/08 et al., Treaty of Lisbon, paras. 208, 218-219.
* 566 See Constance Grewe & Joël Rideau, L'identité constitutionnelle des États membres de l'Union européenne: flash back sur le coming-out d'un concept ambigu, in Jean-Claude Piris et al. (ed.), Chemins d'Europe: Mélanges en l'honneur de Jean Paul Jacqué (2010), 319 et seq. For its origins in the field of psychology see Erik H. Erikson, Identity and the Life Cycle (1973).
* 567 Carl Schmitt, Verfassungslehre (1928, reprint 2003), 103, id., Legalität und Legitimität (1932, reprint), 60-61.
* 568 See in more detail Monika Polzin, Verfassungsidentität: ein normatives Konzept des Grundgesetzes?, 2018.
* 569 FCC, 29 May 1974, Case BvL 52/71, Solange I, para. 43. See in the following also FCC, 22 Oct. 1986, Case 2 BvR 197/83, Solange II, para. 104.
* 570 See, in chronological order, French Constitutional Council, 19 Nov. 2004, 2004-505 DC, Constitutional Treaty, para. 13; Spanish Constitutional Tribunal, 13 Dec. 2004, No 1/2004, Constitutional Treaty; French Constitutional Council, 27 July 2006, 2006-540 DC, Information Society, para. 19; Czech Constitutional Court, 26 Nov. 2008, Pl ÚS 19/08, Treaty of Lisbon I, para.120; Latvian Constitutional Court, 7 April 2009, 2008-35-01, Treaty of Lisbon, part 16.3; Czech Constitutional Court, 3 Nov. 2009, Pl. ÚS 29/09, Treaty of Lisbon II, para. 150; Hungarian Constitutional Court, 3 Nov. 2009, Pl. 12.7.2010, 143/2010, Treaty of Lisbon, Part III.1; Polish Constitutional Tribunal, 24 Nov. 2010, K 32/09, Treaty of Lisbon, Parts III.2.1, III.3.8; Italian Constitutional Court, preliminary reference of 23 Nov. 2016, No 24/2017, Taricco (leading to CJEU, 5.12.2017, case C-42/17, M.A.S. et al., also known as Taricco II); Hungarian Constitutional Court, 30 Nov. 2016, No 22/2016. (XII. 5.) AB.
* 571 See in detail Monica Claes & Jan H. Reestman, The Protection of National Constitutional Identity and the Limits of European Integration at the Occasion of the Gauweiler Case, 16 German Law Journal (2015), 917 et seq.
* 572 Established case law since French Constitutional Council, 27 July 2006, 2006-540 DC, Information Society.
* 573 See most recently French Constitutional Council, 15 Oct. 2021, 2021-940 QPC, Air France, para. 13.
* 574 For the differences see also Jan H. Reestman, The Franco-German Constitutional Divide, 5 European Constitutional Law Review (2009), 374 et seq.
* 575 See French Constitutional Council, 26 March 2003, 2003-469 DC, Decentralisation, para. 2 (in which the Conseil constitutionnel even explicitly ruled that it could not rely on this provision in order to decide on a constitutional revision) and, specifically in the context of European integration, 2 Sept. 1992, 92-312 DC, Maastricht II, para. 19.
* 576 FCC, 5 May 2020, Cases 2 BvR 859/15 et al., PSPP (final judgment), paras. 100, 101 (Anspruch auf demokratische Selbstbestimmung), sometimes also simply referred to as the “right to democracy” (Anspruch auf Demokratie), paras. 158, 230.
* 577 See already M. Wendel, The Fog of Identity and Judicial Contestation, EPL 2021, 465-493 from which the present contribution is derived. As far as I can see, the term “fog of identity” has so far not been used in the legal context. But see Amartya Sen, The Fog of Identity, 8 Politics, Philosophy & Economics (2009), 285-288.
* 578 Be it an EU treaty revision or an intergovernmental treaty such as the TESM.
* 579 FCC, 12 Oct. 1993, Cases 2 BvR 2134/92 et al., Treaty of Maastricht.
* 580 Some of the key decisions, such as the Lisbon judgment, were additionally framed as a litigation between the institutions (Organstreit).
* 581 Particularly by giving parliamentary consent to a Treaty revision.
* 582 Which is why the “fog of identity” can also impact on defensive identity review, see II.1. below.
* 583 The Constitutional Council, see decision of 26 March 2003, 2003-469 DC, paras. 2-3. On the differences between the German and the French approach towards constitutional identity see.
* 584 FCC, Treaty of Lisbon, supra note 3, para. 246.
* 585 See supra note 8.
* 586 See supra note 1.
* 587 FCC, 30 June 2009, Cases 2 BvE 2/08 et al., Treaty of Lisbon, para. 252.
* 588 Ibid., paras. 253-260. For a critique see Christoph Schönberger, Lisbon in Karlsruhe: Maastricht's Epigones At Sea, 10 German Law Journal (2009) 1201, 1208 et seq.
* 589 Interview with former President Andreas Voßkuhle by Frankfurter Allgemeine Zeitung Online (25 Sept. 2011), http://www.faz.net/aktuell/wirtschaft/europas-schuldenkrise/im-gespraech-andreas-vosskuhle-mehr-europa-laesst-das-grundgesetz-kaum-zu-11369184.html.
* 590 On the constraining effect of the FCC's case law in this field see Nik de Boer, Judging European Democracy, chapter 5.3., OUP, forthcoming.
* 591 At the time chair and managing director of the International Monetary Fund (IMF), currently President of the European Central Bank.
* 592 Reportedly she said shortly some weeks before the FCC issuing its (preliminary) ESM-decision: “If I hear the word Karlsruhe one more time, I'm leaving the room.”, see Kay-Alexander Scholz, Karlsruhe's constitutional monastery, Deutsche Welle of 11 Sept. 2012.
* 593 Aptly Christoph Möllers & Daniel Halberstam, The German Constitutional Court says 'Ja zu Deutschland!', 10 German Law Journal (2009), 1241, 255-1256.
* 594 FCC, 12 Sept. 2012, 2 BvR 1390/12 et al., ESM Treaty (preliminary injunction 2012), para. 222 (English translation) and para. 118 (German renumbered version).
* 595 FCC, PSPP (final judgment), supra note 1, para. 100. While the official English translation speaks of “facilitating”, “enabling” seems to be the more appropriate term, given that the German text speaks of “Ermöglichung”.
* 596 FCC, PSPP (final judgment), supra note 1. PSPP is an acronym for Public Sector Purchase Programme.
* 597 Ana Bobiæ & Mark Dawson, What Did the German Constitutional Court Get Right in Weiss II?, EULawLive (12 May 2020).
* 598 FCC, PSPP (final judgment), supra note 1, para. 228.
* 599 Ibid., paras. 222-228 with regard to the scheme for the allocation of risk between national central banks.
* 600 FCC, 7 Sept. 2011, Cases 2 BvR 987/10 et al., Greece & EFSF, paras. 120-132 and para. 125 in particular.
* 601 FCC, ESM Treaty (final judgment), supra note 5, paras. 161-175.
* 602 FCC, PSPP (final judgment), supra note 1, paras. 227 with further references.
* 603 FCC, 13 Feb. 2020, 2 BvR 739/17, Agreement on a Unified Patent Court.
* 604 See FCC, Agreement on a Unified Patent Court, supra note 6, para. 137.
* 605 Ibid., paras. 96-99.
* 606 The Basic Law's EU clause authorizes Germany to “confer sovereign rights by a [parliamentary] statute with the consent of the Bundesrat”. In case of treaty revisions and “comparable regulations that amend or supplement” the Basic Law, a constitutional majority of two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat is required, Article 23(1) sentence 3 in conjunction with Article 79(2) GG.
* 607 Article 23(1) sentence 3 in conjunction with Article 79(2) GG.
* 608 See explicitly the dissenting opinion of Judges König, Maidowski and Langenfeld to FCC, Agreement on a Unified Patent Court, supra note 6, para. 20.
* 609 See the dissenting opinion of Judges König, Maidowski and Langenfeld to FCC, Agreement on a Unified Patent Court, supra note 6, para. 20.
* 610 See FCC, 21 June 2016, Cases 2 BvR 2728/13 et al., OMT (final judgment), paras. 97-99.
* 611 FCC, Treaty of Lisbon, supra note 3, paras. 240-241; FCC, 15 Dec. 2015, Case 2 BvR 2735/14, European Arrest Warrant II, paras. 41-46 with further references.
* 612 FCC, Treaty of Maastricht, supra note 2, para. 106; FCC, Treaty of Lisbon, supra note 3, paras. 240-241; FCC, 6 July 2010, Case 2 BvR 2661/06, Honeywell; FCC, OMT (final judgment), supra note 4; FCC, PSPP (final judgment), supra note 1.
* 613 FCC, Solange I, supra note 2; FCC, Solange II, supra note 2; FCC, 7 June 2000, Case 2 BvL 1/97, Banana market.
* 614 FCC, 30 July 2019, Case 2 BvR 1685/14 et al., Banking Union.
* 615 Ibid., paras. 204 et seq.
* 616 See with regard to PSPP Franz Mayer, The Ultra Vires Act, European Constitutional Law Review (2020), forthcoming.
* 617 FCC, Honeywell, supra note 6.
* 618 FCC, Banking Union, supra note 1, para. 205.
* 619 FCC, 15 April 2021, Case 2 BvR 547/21, NGEU (preliminary injunction), paras. 82, 86, 92-93.
* 620 The combined ultra vires and identity reviews were supplemented by further (defensive) identity reviews, see FCC, PSPP (final judgment), supra note 1, paras. 222-228.
* 621 In that sense Klaus F. Gärditz, Herrschaftslegitimation und implizite Identitätskontrolle, VerfBlog (21 May 2020).
* 622 To the extent that the constitutional complaints were based on a violation of the essence of the right to vote, the complainants would have had to establish a concrete link between the principle of democracy and the Rechtsstaatsprinzip, see FCC, Treaty of Lisbon, supra note 3, para. 182.
* 623 For more details see, Mattias Wendel, Next Generation EU and the German Federal Constitutional Court, The BRIDGE Network Blog of 17 May 2021.
* 624 The decision is now scheduled for 2022.
* 625 FCC, Case 2 BvR 934/19, Egenberger. For an analysis see Heiko Sauer, Kirchliche Selbstbestimmung und deutsche Verfassungsidentität: Überlegungen zum Fall Egenberger, Verfassungsblog (3 May 2019).
* 626 Another relevant case concerns a catholic head physician. After the FCC (FCC, 22 Oct. 2014, Case 2 BvR 661/12, Catholic head physician) had annulled and referred back a decision by the FLC the latter sent a preliminary reference to the CJEU. In its preliminary ruling the Court of Justice took a different approach than the FCC (ECJ, 11 Sept. 2018, Case C-68/17, IR, Catholic head physician). After the second decision of the Federal Labour Court, the catholic organization did not file a second constitutional complaint, however.
* 627 FLC, 25 Oct. 2018, Case 8 AZR 501/14, Egenberger.
* 628 CJEU, 17 April 2018, Case C-414/16, Egenberger.
* 629 This reasoning is hardly convincing, as the ECJ's ruling, while controversial in its outcome, was ultimately based on coherent legal reasoning and a reasonable interpretation of EU law. Under the FCC's own terms, an ultra vires act would require a manifest violation of EU law.
* 630 Cf. Sauer, op. cit. supra note 6.
* 631 See I.1.
* 632 Cf. Sauer, op. cit. supra note 6.
* 633 FCC, European Arrest Warrant II, supra note 5. For further details see Tobias Reinbacher & Mattias Wendel, Case Comment, 23 Maastricht Journal of European and Comparative Law (2016), 702-713.
* 634 FCC, European Arrest Warrant II, supra note 5, para 34.
* 635 Ibid., paras. 48-50 and, more clearly, FCC, OMT (final judgment), supra note 4, para. 138 (“Wahrung des Menschenwürdekerns der Grundrechte”).
* 636 FCC, Solange II, supra note 2, para 132; FCC, Banana market, supra note 7, para. 62.
* 637 See now FCC, 6 Nov. 2019, Case 1 BvR 276/17, Right to be forgotten II, para. 47. This clarification by the Court limits the effect of the Solange case law and is controversial, because Solange II and Banana Market could also have been understood as meaning that only a general decline of the level of protection as a whole (and not only related to an individual right) would reactivate the application of German fundamental rights.
* 638 Aptly Martin Nettesheim, Urteilsanmerkung, Juristenzeitung (2016), 425, 428.
* 639 FCC, 6 Nov. 2019, 1 BvR 16/13, Right to be forgotten I and FCC, Right to be forgotten II, supra note 3.
* 640 For an analysis see Mattias Wendel, The Two Faced Guardian: Or How One Half of the German Federal Constitutional Court Became A European Fundamental Rights Court, 57 Common Market Law Review (2020), 1383-1425 and Daniel Thym, Friendly Takeover, or: the Power of the `First Word', 16 European Constitutional Law Review (2020), 187-212.
* 641 FCC, Right to be forgotten II, supra note 3, paras. 47-49.
* 642 Provided that EU secondary law left no discretion for national authorities - which was arguably not the case in the European Arrest Warrant II.
* 643 On the basis of Article 101(1) sentence 2 GG the FCC examines whether the non-referral of an ordinary or specialized court - and in particular of a court of last instance - infringes the “right to al lawful judge”. However, not every violation of Art. 267(3) TFEU equates to a violation of Article 101(1) sentence 2 GG, because the FCC limits its review competence to manifest violations, see FCC, 29 April 2014, Case 2 BvR 1572/10, paras. 17 et seq. with further references.
* 644 FCC, 19 Dec. 2017, Case 2 BvR 424/17, Detention conditions in Romania. Following the FCC's decision the Higher Regional Court of Hamburg referred a preliminary question to the CJEU, leading to CJEU, 15 Oct. 2019, Case C-128/18, Dorobantu.
* 645 FCC, 1 Dec. 2020, Case 2 BvR 1845/18 et al., European Arrest Warrant III.
* 646 Ibid., paras. 57-69.
* 647 See in more detail Mattias Wendel, Grundrechtswende zur Jahreswende, VerfBlog (1 January 2021).
* 648 FCC, European Arrest Warrant III, supra note 5, para. 63.