Abstract
AbstractThe First Senate of the German Federal Constitutional Court (FCC) has recently introduced the express promise that where EU fundamental rights take precedence over German fundamental rights, the Court itself could directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. There are, however, differences between the Basic Law as the relevant standard of review and other standards of review that are dangerous to ignore. The constitutional status of the FCC’s jurisdiction depends crucially on whether the Court relies on the constitution or on EU fundamental rights. If the constitutional status of the novel jurisdiction covered any binding-effect, and that is a big if, the FCC still would not safeguard the unity and coherence of Union law. Leaving aside the fact that the First Senate is confined to reversing and remanding (unable to enforce anything directly), no beneficial effect on legal certainty grows apparent. Any binding-effect of the novel jurisdiction only provides for consistency without finality. And to venture further into the question: Even if anyone welcomed this novel kind of consistency without finality (virtually “provisional consistency”), this oddish consistency would still be a localized consistency, i.e. in German courts only.
Highlights
The First Senate of the German Federal Constitutional Court (FCC) has recently introduced the express promise that where EU fundamental rights take precedence over German fundamental rights, the Court itself could directly review, on the basis of EU fundamental rights, the application of EU law by German authorities
The constitutional status of the FCC’s jurisdiction depends crucially on whether the Court relies on the constitution or on EU fundamental rights
The First Senate of the German Federal Constitutional Court (FCC) has recently introduced the express promise that where EU fundamental rights take precedence over German fundamental rights, the Court itself could directly review, on the basis of EU fundamental rights, the application of EU law by German authorities.1. This newly invented idea – Karlsruhe’s2 novel “jurisdiction”3 – renounces one of the most distinctive, if sometimes controversial, principles in the FCC’s institutional history: In cases where the Court found the fundamental rights of the Basic Law to be inapplicable due to the precedence of EU law, it completely refrained from conducting a review
Summary
With regard to plain old constitutional complaints (i.e. the applicable Basic Law as the relevant standard of review), Section 31 (1) FCCA lays the legal effects of FCC decisions down in abundant clarity: Decisions of the FCC shall be binding upon the constitutional organs of the Federation and of the Laender, as well as on all courts and those with public authority.. EU Charter are not limited to protecting citizens vis-à-vis the state, and afford protection in disputes under private law”;14 and second, the Court established that a “search engine operator cannot invoke the right to freedom of expression under Art. 11 of the Charter in relation to the search results disseminated by its search engine.” In respect of each example, the vague constitutional status of the novel jurisdiction has not created imminent problems for the simple reason that the constitutional complaint was unsuccessful on the merits (i.e. the First Senate did not reverse an unconstitutional court decision). Let alone the institutional damage for the FCC: non-binding decisions – ignored by lower courts and without limitations corrected by the CJEU’s preliminary rulings pursuant to Art. 267 (3) TFEU – could eventually garner public attention, with claimants demanding more effective remedies and lower courts requiring certainty of the law
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