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Statement by the Press Office of the Federal Constitutional Court

Press Release No. 39/1993 of 12 October 1993

Judgment of 12 October 1993 - 2 BvR 2134/92, 2 BvR 2159/92

The Second Senate of the Federal Constitutional Court rendered its decision on five constitutional complaints directed against the Act of Approval to the Treaty on European Union (Zustimmungsgesetz zum Vertrag über die Europäische Union) as well as the Act Amending the Basic Law (Gesetz zur Änderung des Grundgesetzes), which had been adopted in order to create the necessary constitutional framework for the ratification of the Treaty on European Union (Maastricht Treaty). The Federal Constitutional Court found only one of the constitutional complaints to be admissible and limited its substantive review to whether the Treaty on European Union was compatible with Art. 38 of the Basic Law (Grundgesetz – GG). Art. 38 GG guarantees all German citizens eligible to vote the subjective right to participate in the election of the members of the German Bundestag. The guarantee comprises the fundamental democratic content of this right: it safeguards the right to take part in the legitimation of public authority by the people, carried out through elections, and to influence the exercise of such public authority. Art 38 GG bars European integration from rendering the legitimation of state authority and the influence on the exercise of this authority, both of are provided by elections, void of meaning by transferring the functions and powers of the German Bundestag to the European level in a way that violates such elements of the principle of democracy that are considered inalienable under the Basic Law.

The Federal Constitutional Court concluded that the Union Treaty is compatible with the principle of democracy. However, it also set out specific conditions in respect of the European Union and emphasised specific requirements for its democratic legitimation: The principle of democracy does not prohibit the Federal Republic of Germany from joining an intergovernmental community that is organised as a supranational entity. Membership in such a community, however, is subject to the requirement that the legitimation derived from and the influence exerted by the state’s citizens be safeguarded within the respective association of sovereign states (Staatenverbund) as well. The Union Treaty establishes an association of sovereign states with a view to achieving an increasingly close union between the peoples of Europe – which are organised as sovereign nation states. In contrast, the Treaty does not establish a European state on the basis of one sovereign European people; therefore, it is primarily incumbent upon the sovereign people of the Member States to provide, through their national parliaments, democratic legitimation regarding the exercise of sovereign functions on the part of the European Union. The principle of democracy thus sets limits for the expansion of the functions and competences of the European Union. The German Bundestag must retain for itself functions and powers of substantial importance.

In the current state of development, the European Parliament’s legitimation has a supplementary function. This function could be strengthened if the Parliament were to be elected in accordance with a common electoral law of the Member States and if it were to exercise increased influence on the policies and lawmaking of the European Communities. The decisive factor is whether the democratic foundations of the Union are expanded in correlation with the level of integration and a vigorous democracy is preserved in the Member States while integration continues to advance.

Furthermore, legislation creating an opening within the German legal order for the direct validity and application of the law of the European Communities violates Art. 38 GG if such legislation fails to determine, in a sufficiently specified manner, such sovereign powers whose exercise is transferred to the European level and the envisaged European integration agenda (Integrationsprogramm). If it remained unclear to which extent and scope the German legislature had approved the transfer of sovereign powers to be exercised at the European level, this would amount to a blanket authorisation und thus result in the disposal of sovereign powers ­– Art. 38 GG provides protection against this very outcome.

The Union Treaty, however, determines the functions of the European Union and its relevant Communities in a sufficiently predictable manner. The Union Treaty adheres to the principle of conferral, hence allowing the Union to act solely on the basis of competences expressly provided for in the treaties. The Treaty does not vest the Union with the power to create, on its own accord, financial resources or other means of action that it believes necessary in order to achieve its objectives. Moreover, the exercise of competences is subject to limits set by the principle of subsidiarity. In particular, ratification of the Union Treaty does not entail that the Federal Republic of Germany were to subscribe to an “automatic” progression towards a monetary union in the form of a self-driven process that is no longer controllable nor determinable. The Treaty paves the way towards gradually deeper integration of the European community of law (Europäische Rechtsgemeinschaft); in this regard, any further step is contingent upon either existing requirements that are foreseeable to Parliament or upon additional approval of the Federal Government which in turn is subject to parliamentary influence. The assertion of any additional functions or powers on the part of the European Union and the European Communities are made dependent on treaty revisions and amendments, and consequently require approval of the national parliaments. Overall, the complainants’ concern that – due to its far-reaching objectives – the European Community would evolve into a political union vested with unanticipated sovereign powers without requiring ­– once and again – parliamentary orders giving effect to European law (Rechtsanwendungsbefehl), is unfounded.

The functions and powers transferred to the European level by way of treaty, as well as the scope and level of autonomy regarding decision-making processes within the European Union and the organs of the European Communities, are not conceived in a manner that would render the decision-making and oversight responsibilities of the German Bundestag void of meaning to an extent that was incompatible with the inalienable principle of democracy.

The requirement that the sovereign powers transferred to the European organs be sufficiently specified furthermore entails that significant subsequent changes to the European integration agenda as laid down in the Union Treaty, and to the corresponding competences to act, are no longer covered by the Act of Approval to this Treaty. For instance, if European bodies or organs were to implement or add to the Union Treaty beyond the scope of the treaty instrument on which the act of approval was based, the resulting legal acts would not be binding within the German sphere of sovereignty. German state organs would be prohibited under constitutional law from applying any such legal acts in Germany. In view of this, the Federal Constitutional Court reviews whether acts of European bodies and organs remain within the limits of the sovereign powers transferred to them or whether they exceed such limits.

Sovereign acts of the European Union also affect subjects of fundamental rights in Germany and therefore have a bearing on the guarantees of the Basic Law and the Federal Constitutional Court’s functions which are tailored to the protection of fundamental rights and as such are not limited to protection vis-à-vis German citizens. The Federal Constitutional Court, however, exercises its jurisdiction regarding the applicability of secondary Community law in Germany in a “cooperative relationship” (Kooperationsverhältnis) with the Court of Justice of the European Union; the Court of Justice ensures the protection of fundamental rights in the individual case for the entire territory of the European Community whereas the Federal Constitutional Court can limit its scope of review accordingly to the protection in general of inalienable fundamental rights standards.