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Developments in German Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 report on German constitutional law, which appears in the larger 44-country 2016 Global Review of Constitutional Law. The entire 2016 Global Review is now available in a smaller file size for downloading and emailing: https://ssrn.com/abstract=3014378.


Christoph Möllers, Professor of Public Law and Legal Philosophy at Humboldt-Universität zu Berlin and Permanent Fellow at the Institute for Advanced Study, and Thomas Wischmeyer, Senior Research Fellow at the Institute for Staatswissenschaft and Legal Philosophy at Albert-Ludwigs-Universität Freiburg and Emile Noël Fellow at NYU School of Law

I. Introduction

In 2016, constitutionalism still reigned supreme in Germany. Indicators for the importance of the Federal Constitutional Court (FCC) within Germany’s political system are the media coverage of the Court’s public hearings and the political salience of the issues debated in Karlsruhe. In the reported year, the Second Senate of the FCC discussed the fate of the National Democratic Party of Germany (NPD) for three full days in early March – one of the longest oral arguments in the history of the Court – with a large number of influential politicians present at the hearing.[1] Two weeks later, the Court again dominated the news cycle, when the administration had to defend its decision to unwind Germany’s nuclear energy industry after the Fukushima catastrophe before the First Senate. And in February and September, an international audience was observing the proceedings in cases involving the European Central Bank’s notorious OMT program and the EU-Canada Free Trade Agreement (CETA).

As elsewhere, however, after almost a decade of protracted crises, German institutions begin to show signs of stress and exhaustion. Populism is at the gates and 2017 – a big election year in Germany – will tell us, whether the centrist consensus, which has shaped post-war politics in Germany for almost seven decades now, will hold. In view of these developments, it is an open question whether the constitutional moments staged in Karlsruhe will continue to be a moment of societal “integration” – or whether the juridical taming of politics that has earned the Court its high reputation in the past will become associated with the fuzzy notion of “elitism” that populist movements all over the globe pretend to attack so violently.

II. The Constitution and the Court: Trends and Challenges[2]

So far, the judges seem more or less unimpressed by such considerations.[3]

Nevertheless, observers and judges agree that the FCC is under pressure, too. This pressure, however, is also a consequence of some of the Court’s successes in the past.

Over the years, parallel to Germany’s becoming the “reluctant hegemon” of Europe (The Economist), the FCC has taken a more activist stance towards matters of European and international integration. This outreach has opened up an inward-looking constitutional doctrine and has added an important voice to the global constitutional discourse. But, since the Court’s domestic caseload has not decreased, taking up the new global role has strained the FCC’s resources. In 2016, the institutional costs were particularly visible in the CETA case, where the Second Senate of the Court had to decide overnight on an application for a preliminary injunction against the approval of the Treaty by the German representative in the Council of the European Union.[4] Already from a technical point of view this was an enormous task considering that the German version of the draft treaty runs over nearly 500 pages. Moreover, an order prohibiting the approval would have very likely killed the agreement and would have had major ramifications for the global debate on free trade. How to account for such externalities within the categories and grammar of constitutional law?

Additionally, the doctrinal edifice that the Court has built over the past 65 years, especially in the area of fundamental rights law, is increasingly difficult to sustain. German constitutional doctrine is famous as an attempt to pre-empt and mediate the inherent irrationalities and injustices of democratic power. However, this project has also induced a massive legalisation of politics, which, in turn, has further increased the need and the opportunities for constitutional review. In reaction to more and more subtly differentiated constitutional requirements, statutory law proliferates. Cases brought before the Court today in fields like law enforcement or tax law frequently involve convoluted statutes. If judges take their case law seriously, they must dive deeply into highly technical matters and check multi-dimensional normative programs – a time-consuming enterprise that again is straining the resources of the Court. One example is the 2016 decision on the investigative powers of the Bundeskriminalamt.[5] As described in more detail below, the Court had to evaluate in this case a statute that was already drafted in a very elaborate way in order to comply with previous FCC judgements. The 2016 decision then again partly quashed the statute and developed in over 360 paragraphs even more precise requirements for government surveillance. The rationalizing impetus underlying this and other judgements is certainly laudable. However, the Court has to be careful not to let its jurisprudence develop into a casuistry that makes it impossible even for a well-meaning legislator to act constitutionally.

So, apart from the larger political context, the current challenges for the FCC include bridging the gap between its new global role and its domestic responsibilities as well as balancing its traditional doctrinal approach with the more recent role as an evaluator of normative complexity. For the report we have chosen from 2016’s major decisions those that demonstrate how the Court is currently approaching these challenges.

III. Major Cases

Separation of Powers: Global and Local Challenges

  1. Decision of 13 October 2016, 2 BvE 2/15 – The rights of the parliamentary Committee investigating NSA spying

Domestic separation of powers cases can have important international ramifications, as shown by this case. In the aftermath of the Snowden revelations, the German Bundestag established the so-called “Committee of Inquiry into NSA Activities.” Primary purpose of the Committee was – and still is – to investigate whether the joint signal intelligence activities by the German Federal Intelligence Service (BND) and the U.S. National Security Agency (NSA) violate constitutional rights. To this end, the Committee requested from the Federal Government to hand over a documentation of all search terms (so-called “selector lists”), which the BND had received from the NSA in order to filter traffic at German Internet hubs. The Government refused to comply arguing that such a disclosure would violate the expectations of confidentiality on behalf of the U.S. government and would seriously undermine transatlantic intelligence cooperation. Two parliamentary groups and members of the Committee challenged the refusal citing Article 44 of the Basic Law, which grants inquiry committees the right to collect evidence.

The Second Senate of the Court ruled that the application was unfounded. Traditionally, the FCC acknowledges the importance of inquiry committees as accountability mechanisms and emphasizes that the right to collect evidence belongs “to the core of the right of inquiry.” In this case, however, the FCC stressed the limitations of the right, further accentuating a 2014 decision, which had recognized limits of the right in the field of foreign policy and national security.[6] In the 2016 decision, the Court again evaluated the Committee’s right in light of the government’s interest to effectively organize the intelligence services and intelligence cooperation. This interest is of constitutional relevance, because national security belongs to the government’s “functional” sphere of competence.[7] However, the Court stressed that national security is not generally off-limits for parliamentary inquiries. Rather, a balancing test is necessary. In the concrete case, the specific interests of the Committee in receiving the selector lists was outweighed by the potential implications of the collection for national security and for the U.S.-German relationship,  especially considering that the Government had already provided the Committee with detailed information on the cooperation. The concept of a national security exception will ring familiar to constitutional lawyers from the U.S. and other jurisdictions. Many German scholars remain highly sceptical in this regard.

  • English press release available here

Rights and Freedoms

  1. Judgment of 6 December 2016, 1 BvR 2821/11, 1 BvR 321/12 and 1 BvR 1456/12 – The phase-out of nuclear energy and the right to property

The case presented the last chapter of the fickle story of German politics with regard to the civil use of nuclear energy. In 2002 the red-green government (Schröder) gradually abolished its use with generous transitory rules for the energy industry that was permitted to produce nuclear energy for further decades. At the end of 2010 the liberal-conservative government (Merkel) reintroduced this vastly unpopular technology with one eye to climate change and the other one to business interests. Three months after this statute took effect the Fukushima incident took place. Chancellor Merkel quickly changed her mind, pulled back from the re-entry and had a parliamentary statute passed that now defines a statutory deadline for every single nuclear power-plant in Germany. Still, the statute attempted to secure the amounts of energy that the Schröder government guaranteed for the energy companies. The statute reached this aim in most, but not all of the cases.

Three energy companies sued the federal government for a violation of their property rights. One of them was Vattenfall, a Swedish company, which is completely owned by the Swedish state. As a foreign company Vattenfall had an additional remedy. It pursued basically the same claim under a foreign investment treaty between Germany and Sweden. The case is still pending and to be adjudicated by an ICSID panel in Washington DC. This background is especially relevant, because Vattenfall’s legal standing in the German case was contested. Under German doctrine state owned private corporations are not entitled to basic rights. Rather, they are treated like state organs, who are only obliged by rights. Does this rule also apply to private companies owned by foreign states? The question had never come before a German court. The FCC explicitly gave no general answer to this question, but it accepted Vattenfalls’s case with a rather informal nod to European law (paras. 184–202) and a reasoning that sounds more pragmatic than doctrinal. For the practical relation between the national constitutional review case and the investment protection case, this decision was extremely relevant. Had the Court not accepted Vattenfall’s case because of a lack of standing, Vattenfall could have argued before the investment tribunal that its private property is without any national legal protection in Germany, because there is no other legal remedy against a parliamentary statute than the FCC complaint, even if the statute directly infringes upon your rights. In the end, Vattenfall’s was the most successful claim in this case.

Otherwise, the application of the companies remained mostly without success. With the exception of two particular power plants whose treatment fell out of the statutory scheme, the Court accepted the parliamentary decision. In a lengthy reasoning, which attempts to consolidate the complicated state of the constitutional protection of private property, the Court mostly follows traditional paths: It confirmed the scope of the property protection, but gave some interesting qualifications for the protection of administrative law permissions and their relation to private real estate property (paras. 220–241). It confirmed the line between a taking (Enteignung) and a regulation of private property (Inhalts- und Schrankenbestimmung) in a manner that remains as formal as it had been before (paras. 242–261). This means that a “taking” is not defined by the severity of the economic effect of a state decision, but by its formal structure. According to this generally accepted interpretation, terminating a permission, like the legislature did in this case, is a regulation, not a taking, because the property is not delivered to another legal person. Therefore, it does not trigger the constitutional compensation clause that is limited to formal takings. The companies had tried to change this settled distinction by buying masses of expertise in form of legal opinions. (even from former Justices of the Court who seem to receive more and more of this kind of offers in the absence of any legal rules or ethical standards), but it didn’t help. The real test of the statute came with regard to the reasonableness of the statutory scheme, a form of equality review that is used more and more by the First Senate in rights cases leading to a certain accommodation between constitutional and administrative law review. Here, the Senate was not completely convinced by the method, which the legislature had chosen in dealing with the question, which plant should be terminated at which time. Therefore, some kind of remedy (not necessarily monetary compensation, but instead more time to use the plant) has to be given to two of the plaintiffs. The Court also awarded some compensation for legitimate expectations as far as the plaintiffs had made specific investments between the short-lived reintroduction of nuclear energy and its abrupt end three months later. But so far, it doesn’t look like there are relevant claims for this period of time.

This was a big case in terms of factual complexity and money, less so in terms of legal doctrine. It broke little new law, but it will remain very helpful as a fresh account on many aspects of German constitutional property doctrine.

  • English press release available here
  1. Judgment of 20 April 2016, 1 BvR 966/09 and 1 BvR 1140/09 – Powers of the Federal Criminal Office

In 2009, the grand coalition passed a fundamental reform of the powers of the Federal Criminal Office (Bundeskriminalamt or BKA). Most police forces in Germany are run by the states (as the Americans required from the Germans during the deliberations of the Grundgesetz). But the centralization and federalization of the German police has been under way since 9/11 and the process has not yet come to an end. Today’s still growing operative federal police force (Bundespolizei) grew out of the federal border patrol and is becoming more and more relevant. The BKA is not (at least not yet) the organizational head of this federal police force, but a federal office of its own. For decades it had been restricted to co-ordinating and information gathering functions. After the constitutional rules of executive power sharing had been amended in 2006, it became possible to redefine the functions of the office. With the new statute, it received plenary operative powers, e.g. for wire-tapping, online-searches or GPS-surveillance, powers that are in most cases already available to the state police. The statutory powers under review are subsidiary in relation to the state police and only apply under the condition that a case of international terrorism is in question. As a matter of practice, they had only be applied in double-digit numbers during the years, in which the litigation took place. In Germany, the functions of the police are governed by two kinds of regimes. When the police investigates a crime, it is empowered by federal rules of criminal procedure. But when the police acts in order to prevent a “danger” (an old core concept of German administrative law, meaning a certain substantiated possibility that a protected legal good will be thwarted), it is governed by specific rules of “police law.” In this case, the statute was part of this federal police law.

A group of attorneys and liberal politicians raised a sweeping individual constitutional complaint against the statute addressing more or less all authorizations in it. The lengthy decision reads like a manual of constitutional standards for modern police forces. Though many questions had already been settled by the First Senate in its rich and detailed jurisprudence on the constitutional limits of police powers[8] and though this jurisprudence played a major rule in the drafting of the statute, the Court found many of the complaints to be successful. Different from many other major cases, this one is not centred around one or two big legal problems. Rather, it is a collection of around twenty highly technical constitutional problems that are basically all solved by a very specific, though not always completely foreseeable, application of the principle of proportionality. To select just three of them:

First, it is one of the most difficult questions of the more recent debate in how far the legislator is bound to the traditional standard of “concrete danger” in order to empower the police to liberty infringing measures. The standard is pre-constitutional, but relatively demanding when applied to preventive information gathering in a situation when concrete but incomplete pieces of information may require more intrusive measures like wire-tapping. Under certain circumstances the Court accepts a less demanding standard, yet it insists, that measures must always be based on concrete pieces of evidence, not on mere general experiences (paras. 109–113).

A second problem follows from the effects of human dignity. The Court has deduced from human dignity a so called absolute core of intimate privacy (Kernbereich privater Lebensgestaltung), in which the state must not intrude under any circumstances.[9] In order to prevent such intrusions, procedural protections must be in place for certain qualified measures. Wiretapping of a private phone must, therefore, be reviewed in real time by a government lawyer who has to stop the measure whenever the gathered information approaches this private “core.” But what about standard measures like the search of a handbag, when the police finds a diary? Do they have to be accompanied by comparable procedural protections? In this decision, the Court has considerably extended the constitutionally required scope for such measures (paras. 119–130). From now on, many traditional standard measures like outdoor long-term observation have to be the accompanied by protective measures. This also means that much of the classical police work has to be done or at least accompanied by government lawyers.

Thirdly: The plaintiffs went to court in 2009, long before Eduard Snowden’s publications on the NSA and its practices in controlling global internet communication. The question of international anti-terrorism co-operation was not a big issue back then. Even the plaintiffs barely mentioned it in their briefs. Today, it has become a major concern for the German Court, which stipulates in the decision very demanding standards for the transfer of information between national and international security organs. The selection of a country and the procedures, in which personally relevant information can be transferred have to be determined by the legislature in detail. These constitutional requirements are virtually incompatible with the holdings of the Second Senate in the NSA case (see above sub III.1). While the First Senate requires the legislator to define the way international co-operation is practiced, the Second Senate excludes the legislator from the realm of international intelligence co-operation. As the Court is always careful to avoid an open debate of these contradictions in a plenary session, this tension is unlikely to go away soon. Plaintiffs are advised to get to the First Senate, state organs should rather seek the Second.

  • English press release available here
  1. Judgement of 31 May 2016, 1 BvR 1585/13 – Sampling and the right to artistic freedom

For German constitutional judges, cases involving the arts are relatively rare, although Article 5 sec. 3 of the Basic Law explicitly recognizes the right to artistic freedom. So, one can assume that the FCC approached the case reported here with more than the usual excitement, not the least because cases on art law give judges the opportunity to prove that underneath their robes creative spirits hide. Usually, these spirits are then transformed in eloquent prose on the importance of art and artistic freedom.

The case at hand concerns a highly controversial issue in contemporary art: sampling. In 1977, the electronic music band “Kraftwerk,” probably best known for the 1974 song “Autobahn,” released its sixth album “Trans Europa Express.” The album featured a composition called “Metall auf Metall”. Twenty years later, a German hip hop-producer took a two-second rhythm sequence from the original song and used this “sample” as a continuously repeated rhythm break (loop) for a new song. Kraftwerk sought a cease and desist order and sued the composer and the production company for damages. The case dragged in various courts for almost a decade until it finally reached the FCC. Claimants before the FCC were the composers and the production company of the 1997 song, after the Federal Court of Justice (FCJ)[10] had ruled that even the use of extremely short parts of a song can violate the original producer’s right to copyright protection. According to the FCJ, “sampling” was not justified by the free use exception of § 24 sec. 1 of the German Act on Copyright and Related Rights (Urheberrechtsgesetz). The claimants before the FCC argued that the FCJ’s decision had not taken into account that sampling itself is a central part of the musical culture that forms hip hop.

The First Senate of the FCC ruled that the FCJ’s decision had violated the right to artistic freedom of the claimants. It started its legal analysis with the observation that copyright law needs to strike a balance between the property interests of the producers and the conflicting fundamental rights of subsequent users (para. 82). The Court then elaborated that sampling per se is not excluded from constitutional protection as an expression of the right to artistic freedom, because the right is not limited to prima facie legal activities (para. 90). Quoting an article from a musicologist with the title “The Birth of Pop from the Spirit of Phonographic Reproduction”, the Court then elaborated that in hip hop the direct citation of an original sample is considered to be an important means for the “‘aesthetic re-formulation of the collective memory of cultural communities’ … and as such an essential element of an experimentally synthesizing process of creation” (para. 99). On this ground the FCC held that, if a music genre defines itself through aesthetic strategies involving copying, the constitution demands that copyright laws and their application must take this into account.

The Court then criticized the approach of the FCJ, which had attempted to strike a balance between the rights of the original creator and the “copier” by asking, how difficult it was to reproduce the original. Instead, the FCC obliged the FCJ, to which the case was sent back, to consider in its application of the “fair use” principle criteria such as the “artistic and temporal gap to the original work,” “the significance of the borrowed sequence,” and “the impact of the economic damage for the creator of the original work” (para. 102).

In a final and interesting twist, the FCC also asked the FCJ to investigate, whether the FCC’s interpretation of German constitutional law could be squared with EU law, because at least some of the copyright claims might also be subject to the European Union Directive on Copyright. In this case, the FCJ will need to assess whether EU law leaves room to apply German (constitutional) law, eventually by refering the case to the European Court of Justice. Scholars should study this technique of “indirect referral” carefully.

  • English press release available here
  • Ines Duhanic, Copy this sound! The cultural importance of sampling for hip hop music in copyright law – a copyright law analysis of the sampling decision of the German Federal Constitutional Court, Journal of Intellectual Property Law & Practice (2016) 11 (12): 932-945.
  1. Judgment of 19 April 2016, 1 BvR 3309/13 – On the right to determine parentage

The right of an individual to know his or her parents is widely recognized as one aspect of the general right to private life (Article 8 of the European Charter of Human Rights), or of the so-called “general right of personality,” which under German doctrine is derived from Article 2 sec. 1 in conjunction with Article 1 sec. 1 of the Basic Law (Allgemeines Persönlichkeitsrecht). For a long time, legal proceedings to establish parentage were quite cumbersome for children, also because the parental relationship was hard to prove from a biological point of view. With the arrival of reliable genetic parentage test, this changed and consequently the legal field has been upended. The FCC itself was confronted several times with this development[11], as was the European Court of Human Rights[12]. In 2007, the FCC obliged the legislator to pass regulation that made it possible for children to initiate court proceedings in order to determine “legal paternity”  (see § 1600d of the Civil Code (Bürgerliches Gesetzbuch)). Through such proceedings, a legal father-child relationship can be established, including all mutual rights and obligations. But children do not always seek “legal paternity.” Some are only concerned with “biological paternity,” i.e. they want to find out who is the biological father without necessarily establishing a legal bond to this person. In German civil law, such a claim can be based on § 1598a of the Civil Code. However, this provision only grants such a right for the father, the mother, or the child within an existing legal family vis-à-vis the other two members of that family. People outside this small group cannot be forced by legal means to consent to a genetic parentage test or to providing a genetic sample suitable for such a test.

This legal situation is unsatisfying for those who suspect that their legal family is not their real family, but who do not necessarily want to give up their existing (legal) family ties. The complainant in the present case, who was born out of wedlock in 1950, was in such a situation. Having failed to convince the civil courts that § 1598a of the Civil Code should be interpreted broadly as to give a claim also towards the “putative biological, but not legal father”, the claimant turned to the FCC and argued that such an interpretation was mandated by its constitutional “right of personality.”

The FCC, however, held that the constitutional complaint was unfounded, because the legislator was not obliged to provide for an “isolated right against the putative biological, but not legal father to determine parentage.” The Court emphasized the high constitutional rank of the right to know one’s parents (paras. 35–37) and repeated that, in general, the state, when setting up a legal system to determine familial relations, has a constitutional obligation to appropriately take into account the legitimate interests of those individuals from whom available information on their origins (or, from the perspective of the potential fathers seeking to clarify his relations, on their parenthood) is withheld. However, in light of the many conflicting fundamental rights claims at stake, the legislature has a wide “margin of appreciation” when weighing the conflicting claims. In particular, the “right to respect for one’s private and intimate sphere” (Recht auf Achtung der Privat- und Intimsphäre) derived from Art. 2 sec. 1 in conjunction with Art. 1 sec. 1 of the Basic Law has to be taken into account, which protects both the mother and the potential biological father from disclosing information on sexual relationships against their will (paras. 53–54). Moreover, a man whose biological paternity is determined against his will is affected in his right to informational self-determination (Recht auf informationelle Selbstbestimmung) (Art.  2 sec. 1 in conjunction with Art. 1 sec. 1 of the Basic Law) and in his right to physical integrity  (Art. 2 sec. 2 of the Basic Law) (paras. 5558). Finally, the members of the child’s existing legal family have a right to family life protected under Art. 6 sec. 1 GG are affected (paras. 59, 63).

In such a complex normative situation, the legislature’s decision not to provide the means for determining parentage in isolated proceedings vis-à-vis the putative biological father is not impermissible, even though a different legislative decision might also be compatible with the Basic Law (para. 72). The FCC concludes its judgement – a rare example of judicial restraint – with six lengthy paragraphs on ECtHR case law finding that the ECtHR has acknowledged a significant margin of appreciation in these cases.[13]

  • English press release available here

The Grundgesetz in Europe and in the world

  1. Decision of 13 October 2016, 2 BvR 1368/16 et al. (Applications for a Preliminary Injunction) – The EU–Canada Comprehensive Economic and Trade Agreement (CETA) before the FCC

The legal battle over multilateral trade agreements is currently fought on many grounds. In the European Union, the Court of Justice will soon decide on the division of powers between the Union and the Member States.[14] But opponents of the trade deals also take recourse to national courts, including the FCC. In what was promoted as the “biggest constitutional complaint in the history of the Court,” over 200.000 applicants joint forces to challenge Germany’s participation in the EU–Canada Comprehensive Economic and Trade Agreement (CETA) and thus ultimately the ability of the EU to close the deal. In a parallel Organstreit proceeding, the parliamentary group of the Left Party in the Bundestag pursued the same objectives.[15]

The claimants relied on a now well-known doctrinal construct that the Court had initially invented to let citizens challenge the constitutionality of EU acts by means of an individual constitutional complaint (Verfassungsbeschwerde). The core of the argument is that the individual right to vote (Article 38 of the Basic Law) in conjunction with the constitutional principle of democracy (Articles 79 sec. 3 and Articles 20 secs. 1 and 2 of the Basic Law) does not only guarantee formal participation in an election, but meaningful representation.[16] In other words, German voters can claim that the competences of the democratically elected German parliament must not be undermined or hollowed out. The competences would be undermined, if EU institutions, eventually acting in concert with the German federal government, breach the existing primary law and act outside of the competences attributed to the Union under the treaties (so-called ultra vires acts). Representation would be hollowed out, if the proposed acts implicated Germany’s “constitutional identity”, e.g. legal bodies would be created that were incompatible with the principle of democracy (Articles 20 secs. 1 and 2 of the Basic Law).

The claimants argued that several parts of CETA did not fall within the scope of the competences the European Union. Additionally, CETA would empower democratically unaccountable institutions – so-called dispute settlement bodies –, which would hollow out the political process and the representative institutions in the member states and thus violate the “constitutional identity” of the Basic Law. The petitioners urged the Court to take immediate action and to issue a preliminary injunction in order to prevent the Council of the European Union from authorizing the signing of CETA and its provisional application.

The Court acted swiftly. In an unusual move, it ordered a public hearing on the question whether a preliminary injunction should be issued. After a day of debate and a night of deliberation, the Court declined to issue the preliminary injunction.

One should not read too much into this decision: The statutory standard for preliminary injunctions is defined in § 32 sec. 1 of the Federal Constitutional Court Act. According to this law, an injunction will be issued only “if this is urgently required to avert severe disadvantage, prevent imminent violence or for other important reasons in the interest of the common good.” In applying this rule, the Court traditionally weighs only the consequences it would have, if it would or would not issue the injunction; whether or not the plaintiffs are likely to succeed on the merits of a case, is only taken into consideration, if the outcome is obvious.

Against this backdrop, the lengthy CETA opinion leaves much room for interpretation on how the case will be decided on the merits. Nevertheless, it is already clear from the decision that the FCC takes the constitutional challenges seriously. While the Court emphasizes the importance of external trade relations, the broad discretion of the Federal Government in the fields of European, foreign and foreign economic policy as well as the “reliability on the part of the Federal Republic of Germany” as a pre-condition for the global influence of Germany and the European Union, it also affirms several points that are crucial for the plaintiffs’ challenge, namely the distinction between foreign direct investment  and foreign portfolio investment (no EU competence for the latter, according to the Court, para. 53)[17], the existence of additional limits to EU competences in several areas covered by CETA (paras. 54–58), and, most importantly, the need to ensure democratic accountability of all institutions created by CETA (paras. 59–65). These standards will most certainly be fleshed out in the final decision and could seriously impede the ability of Germany, and consequently of the EU, to participate in ambitious multilateral trade projects. How the standards will relate to the CJEU’s Singapore decision, will be one of the more interesting questions in the following years.

  • English press release available here
  1. Decision of 15 December 2016, BvL 1/12 – Treaty Override

Technically a case from 2015 (the decision dates from December 15, but was published only in February 2016), the Treaty Override decision addresses one of the central question of international law: When and how can states in dualist systems disobey international treaties?

The case originated from a legal dispute involving the now defunct 1985 Double Taxation Treaty between Germany and Turkey. In this treaty, the two countries had agreed on measures to avoid double taxation. According to the German Federal Court of Finance, who referred the case to the FCC, a later statutory amendment to the German Income Tax Act from 2003 directly contravened the Treaty. The Federal Court of Finance asked the FCC, if the enactment of the Income Tax Act would not only be a unilateral breach of Germany’s international obligations[18], but also violate the German Basic Law.

From a doctrinal point of view, it is not immediately clear, how the Federal Court of Finance could arrive at this conclusion. Article 59 sec. 2 sentence 1 of the Basic Law is commonly read as stating that international treaties enjoy the same rank as federal statutory law. And as a part of federal statutory law, they are subject to the principle “lex posterior derogat legi priori” (a later law supersedes a prior, conflicting law). How can the conflict between two statutory laws rise the issue of constitutionality?

For the Federal Court of Finance, the answer was: Görgülü (para. 14). In this seminal case from 2004, the FCC had decided that, despite the generally dualist approach of the Basic Law, the European Charter of Human Rights – an international treaty – enjoyed an elevated rank amongst German statutory law.[19] Elevated means that all German law, including the Basic Law, must be interpreted in light of the Convention and of the judgments of the European Court of Human Rights. According to the FCC, a violation of this obligation is at the same time also a violation of the principle of legality (Article 20 sec. 3 Basic Law) and can be challenged before the FCC. Now, the referring chamber of the Federal Court of Finance, in line with many German scholars, derived from Görgülü the rule that not only the Convention, but international treaty law in general supersedes federal statutory law and that the parliament may deviate from international treaties only to protect “fundamental constitutional principles” (para. 59). International treaties would thus enjoy almost the same rank as customary international law or the general principles of international law [20]

However, in a political climate, which associates international treaties mostly with investment tribunals and international tax avoidance, arguing for the position that treaties generally take precedence over parliamentary acts, was an uphill battle from the beginning. And, as the FCC made sufficiently clear, it was also based on a serious misreading of the Court’s previous decisions. The FCC first repeated that, as a rule, the domestic status of international treaties equals the status of federal statutory law (Article 59 sec. 2 of the Basic Law). The Court added that while the Basic Law is strongly committed to international law, the principle of “openness to international law” (Grundsatz der Völkerrechtsfreundlichkeit des Grundgesetzes) does not  translate into an absolute constitutional obligation to obey all rules of international law. While the principle enjoys constitutional rank, it must be balanced with the principles of democracy and parliamentary discontinuity. The Court emphasizes: “Democratic power is always temporary power” (para. 53). Therefore, as a general rule, Parliament must not bind its successors and limit their ability to correct past legislative decisions, because “this would set political views in stone” (id.). In order to balance its commitment to international law with the idea of democratic government, the Basic Law itself has created a differentiated system, which is not up for judicial re-invention. Görgülü then, the Court explained, was a different matter, because the Constitution itself recognizes in Article 1 sec. 2 of the Basic Law the protection the human rights as one of the central values of German constitutionalism (para. 59).

One member of the Court, Justice König, herself an international lawyer, was unimpressed by the majority opinion. In her dissent, she declared the formalist view of the majority to be “outdated” and proposed a general balancing test for the evaluation of the constitutionality of treaty overrides based on a set of criteria such as the goal of the later statute, the role of individuals affected by the override, the urgency of the override and the international consequences of the breach (para. 8 of the dissent).

  • English press release available here
  • Klaus Ferdinand Gärditz, Treaty Override, American Journal of International Law, Vol. 110, Issue 2 (April 2016), pp. 339-346.
  1. Judgment 2 BvR 2728/13 et al. – The constitutionality of the OMT Programme of the European Central Bank

With this judgment ends the longest case saga in the history of the Court. In the summer of 2012 at the height of the Euro crisis, a group of citizens and MPs raised constitutional complaints and Organstreit proceedings (proceedings on a dispute between supreme federal bodies) against federal legislation on the introduction of the European Stabilization Mechanism (ESM) and the Fiscal Treaty. Only a couple of days after the Court had given a preliminary decision, in which it held both measures, by and large, to be constitutional[21], Mario Draghi announced the OMT program in a famous press conference (“whatever it takes…”) promising to the markets that the bank would function as a lender of last resort in order to stabilize the common currency. In a step that is not untypical for the high degree of informality in German constitutional procedure the plaintiffs extended their complaint in the main proceedings by including the decision of the ECB into their complaint. The Court accepted this and while the oral argument about the preliminary injunction was mostly concerned with the ESM, the oral argument in the main case was a battle about the legitimacy of the ECB, while ESM and Fiscal Treaty were barely mentioned. 2014, the Court declared in a first decision ESM and the Fiscal Treaty to be constitutional.[22] In a second decision, six of the eight justices declared their opinion that the OMT-program was not covered by the mandate of the ECB. For the first time in the history of the Court, the majority referred the case for a preliminary ruling to the CJEU.[23] As generally expected, the CJEU did not share the German concerns and decided that the decision of the ECB was legal.[24] To formally terminate the procedure, the German Court had now to react to the decision of the CJEU[25].

In its reference to the CJEU, the FCC had developed two legal arguments to explain its doubts regarding the OMT-Program. Firstly, it saw the distinction between monetary and economic politics being undermined by the ECB’s decision. Secondly, the Court interpreted the OMT-program as a violation of the prohibition of direct monetary financing of states through the ECB in Art. 123 and 125 TFEU. As the FCC is, according to its own standard, not entitled to review all violations of European law through European organs, but only “evident” ones that create a “structural shift” within the European competence order,[26] the Court had to establish a manifest violation of the ECB. Now, after the decision of the CJEU, it was confronted with an opinion that did not only see no manifest, but no violation at all. It seems fair to say that both courts have a point. The CJEU, not accustomed to a full-fledged review of an essentially political decision that still kept the form of a central bank action, performed a relatively comprehensive and clear review of the ECB’s action. The fact that it left the interpretation of the facts to an independent expertocratic agency does not seem too unusual. As far as the German Court is concerned, there were indications that the true intention of the ECB’s action was different from classical monetary politics. But anyways, the real challenge for the German Court was procedural. Even if the ECB acted without a mandate, which part of the German state can be made responsible for the action of an independent EU organ? This puzzle was never really solved in the case.

In order to conciliate these starkly contradicting positions in this final decision, the Court noted that its own interpretation of European law was not able to substitute the interpretation of the CJEU. Instead, it had to check according to a weaker standard, if the CJEU had rendered a meaningful independent review of the legality of ECB action, even if this review came to a different result than the FCC’s assessment (para. 161). To square the, circle the FCC interpreted the CJEU’s decision in a very specific way, an interpretation that can also be read as a warning. The FCC took the CJEU’s factual description of the ECB’s program as normative requirements. In other words, it read the ECB’s own description of the OMT program as conditions for the legality of the program, e.g. with regard to the safeguards that should prevent states from refinancing themselves directly through the program (paras. 163 et seq.). This reading creates something like a substantial constitutional standard for actions of the ECB. We will see, if these standards will be used some day by the European courts or if they will remain just a piece of German European constitutional law.

  • English press release available here
  • Asteris Pliakos & Georgios Anagnostaras, Saving Face? The German Federal Constitutional Court Decides Gauweiler, German Law Journal 18 (2017), pp. 213–232

IV. Conclusion

2016 was a year with many legally wide-ranging and politically important decisions. All in all, the ability of the FCC, a relatively small institution, to lead substantial oral arguments and to deliver many thoroughly argued judgments remains astonishing. Yet, the danger of an institutional overstretch, both as a matter of institutional capacity and of political legitimacy, debated since the 1970s, seems to become more and more acute. Maybe wrongly so: Between 1985 and 1999 the Court published 33 volumes of its official collection – and between 2000 and 2014 36 volumes. This is only a modest increase. A historical perspective may teach us that the presence of the Court in virtually all politically contested questions has been a part of the normality of the Federal Republic since its beginnings.

Recent Literature

  • Justin Collings: Democracy’s guardians. A history of the German Federal Constitutional Court 1951–2001 (OUP 2015).
  • Klaus Ferdinand Gärditz: Territoriality, Democracy, and Borders: A Retrospective on the “Refugee Crisis”, German Law Journal 17 (2016), pp. 907–922.
  • Dieter Grimm: Constitutionalism: Past, Present, and Future (OUP 2016).
  • Stephan Jaggi: The 1989 Revolution in East Germany and its Impact on Unified Germany’s Constitutional Law: The Forgotten Revolution? (Hart & Nomos 2016).

[1] For a description of the proceedings see Russell A. Miller, How to Kill an Idea: An American’s Observations on the NPD Party-Ban Proceedings, VerfBlog, 13 January 2017, http://verfassungsblog.de/how-to-kill-an-idea-an-americans-observations-on-the-npd-party-ban-proceedings/.

[2] The Federal Constitutional Court is one of the most well-researched courts in the world. Basic information on the Court in English, including a documentation of current and past cases, a description of the various types of proceedings, a history of the Court and the annual statistics, can be found on the Court’s website, http://www.bundesverfassungsgericht.de/EN/Homepage/home_node.html. The official statistics for 2016 are not available, yet.

[3] However, as any other court, the FCC has always been influenced by public opinion. A detailed history of where the FCC has followed shifts in public opinion (e.g., during the European debt crisis) and where it has not, remains to be written.

[4] Decision of 13 October 2016, 2 BvR 1368/16 et al. (see below sub III.6.)

[5] Judgement of 20 April 2016, 1 BvR 966/09 and 1 BvR 1140/09 (see below sub III.3.).

[6] Judgment of 21 October 2014, 2 BvE 5/11, Rüstungsexport, BVerfGE 137, 185.

[7] The Court refers to the untranslatable notion of the “Interesse der Bundesregierung an funktionsgerechter und organadäquater Aufgabenwahrnehmung.”

[8] FCC, Judgment of 12 March 2003, 1 BvR 330/96, BVerfGE 107, 299; Judgment of 27 July 2005, 1 BvR 668/04, Vorbeugende Telekommunikationsüberwachung, BVerfGE 113, 348; Order of 4 April 2006, 1 BvR 518/02, Rasterfahndung II, BVerfGE 115, 320.

[9] FCC, Judgment of 3 March 2004, 1 BvR 2378/98, 1084/99, Großer Lauschangriff, BVerfGE 109, 279.

[10] FCJ, Judgment of 20 November 2008, I ZR 112/06, Metall auf Metall I, and Judgment of 13 December 2012, I ZR 182/11, Metall auf Metall II.

[11] FCC, Judgment of 13 February 2007, 1 BvR 421/05, Vaterschaftsfeststellung, BVerfGE 117, 202; Order of 24 February 2015, 1 BvR 472/14.

[12] ECtHR, Anayo v. Germany, no. 20578/07, 21 December 2010; Schneider v. Germany, no. 17080/07, 15 September 2011; Kautzor v. Germany, no. 23338/09, 22 March 2012; Ahrens v. Germany, no. 45071/09, 22 March 2012.

[13] Cf. ECtHR, Kautzor v. Germany, no. 23338/09, 22 March 2012.

[14] Case 2/15 on the Request for an opinion submitted by the European Commission pursuant to Article 218(11) TFEU (on the Singapore Free Trade Agreement).

[15] On this type of proceedings see  http://www.bundesverfassungsgericht.de/EN/Verfahren/Wichtige-Verfahrensarten/Organstreitverfahren/organstreitverfahren_node.html.

[16] See Judgment of 30 June 2009, 2 BvE 2/08 et al., Lissabon, BVerfG 123, 267 <353, 400>; Order of 6 July 2010, Honeywell, BVerfGE 126, 286 <304>; Order of 14 January 2014, 2 BvR 2728/13 et al., OMT, BVerfGE 134, 366 <392 para. 37>; Judgement of 21 June 2016, 2 BvR 2728/13 et al., para. 148.

[17] Cf. for a similar move with regard to the distinction between monetary and economic politics the Judgment 2 BvR 2728/13 et al. (see below No. 8).

[18] The Treaty has been denounced and renegotiated in 2011.

[19] FCC, Order of 14 October 2004, 2 BvR 1481/04, Görgülü, BVerfGE 111, 307.

[20] For these types of rules Article 25 of the Basic Law orders: “The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.”

[21] FCC, Order of 17 April 2013, 2 BvQ 17/13.

[22] FCC, Judgment of 18 March 2014, 2 BvR 1390 et al., ESM-Vertrag, BVerfGE 135, 317.

[23] FCC, Order of 14 January 2014, 2 BvR 2728/13 et al., OMT-Vorlage, BVerfGE 134, 366.

[24] CJEU, Judgement of 16 June 2015, C-62/14.

[25] FCC, Judgment of 21 June 2016, 2 BvR 2728/13 et al., OMT-Urteil.

[26] FCC, Order of 6 July 2010, 2 BvR 2661/06, Honeywell, BVerfGE 126, 286.

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Published on August 15, 2017
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