Effective protection of fundamental rights must be guaranteed where sovereign powers are transferred to supranational organisations

Press Release No. 70/2018 of 29 August 2018

Order of 24 July 2018
2 BvR 1961/09

Laws that transfer sovereign powers to international organisations (Art. 24(1) of the Basic Law, Grundgesetz – GG) are, as acts of German state authority, bound by the fundamental rights. The core content (Wesensgehalt) of fundamental rights must be guaranteed also with regard to supranational powers. Where sovereign powers are transferred to international organisations, the legislature is obliged to ensure the minimum protection of fundamental rights required under the Basic Law. In addition, within the scope of their competences, all constitutional organs are obliged to take steps towards upholding the minimum standard of fundamental rights protection required under the Basic Law. This obligation applies to the establishment of an international organisation as well as its entire existence. The minimum standard of fundamental rights protection required under the Basic Law includes the guarantee of effective and comprehensive legal protection.
In an order published today, the Second Senate of the Federal Constitutional Court dismissed as inadmissible a constitutional complaint because violations of these requirements were not sufficiently substantiated. The constitutional complaint was directed against judgments of the Frankfurt am Main Higher Regional Court (Oberlandesgericht) and the Federal Court of Justice (Bundesgerichtshof), which held that there was no domestic legal protection against a decision of the Board of Governors of the European Schools, an international organisation, to increase school fees.

Facts of the case:
The European School Frankfurt, a dependent unit of the international organisation “The European Schools”, is one of currently 13 European Schools. They were jointly established by the Member States of the European Union and the European Union in order to provide children of parents working for European institutions with an education in their mother tongue. The complainants did not work for European institutions. They are parents of former students who had concluded school contracts with the European School Frankfurt for their children and had, in these contracts, agreed to the payment of school fees fixed annually by the Board of Governors of the European Schools. In the school year 2003/2004, the Board of Governors raised the school fees by more than 30 per cent in some instances. Since the complainants deemed this increase to be excessive, they challenged it before the Complaints Board, which has been established for European Schools under Article 27 of the Statute of the European Schools. The Complaints Board declared itself not competent in that matter. The complainants brought actions seeking a refund of the part of the school fees that they deemed excessive and that they had already paid, and seeking a declaration that the school had to determine the school fees payable until the European Baccalaureate in a fair and equitable manner from the year 2005/2006. Their legal recourse remained unsuccessful, even in the last instance. With the constitutional complaint, they challenge the judgments of the Frankfurt Higher Regional Court and the Federal Court of Justice. They also indirectly challenge the German Act of Approval to the Convention defining the Statute of the European Schools, according to which German courts are not competent for their claims.

Key considerations of the Senate:
1. a) Integration laws (Integrationsgesetze) transfer sovereign powers to international organisations according to Art. 24(1) GG. Integration laws must ensure that international organisations also afford fundamental rights protection which covers the minimum standard required under the Basic Law, and, in particular, guarantee the core content of fundamental rights. To the extent that sovereign powers are transferred to international organisations, Art. 24(1) GG opens up the domestic legal order in a manner that may limit Germany’s exclusive claim to authority within the area in which the Basic Law applies and that may leave scope for laws from a different source, which may be valid and applicable within the state’s sphere of control without any transposing or implementing act of German authorities. This is justified under constitutional law by the authorisation with respect to integration under Art. 24(1) and (1a) GG, and it is based on the respective integration laws and the acts of approval to the relevant treaties. As acts of German state authority, integration laws are bound by the fundamental rights guaranteed under the Basic Law. In general, these laws must guarantee the core content of fundamental rights (Art. 19(2) GG) also with regard to supranational powers.

b) Where the state opens up its legal order and grants sovereign powers to organs of an international organisation that may restrict (fundamental) rights or make such restrictions possible, the state is obliged to ensure that the minimum standard of fundamental rights protection required by the Basic Law is upheld. In that respect, the legislature deciding on integration matters may transfer sovereign powers to an international organisation only if it provides guarantees under the rule of law regarding an adequate protection of fundamental rights. In addition, within the scope of their competences, all constitutional organs are obliged to take steps towards upholding the minimum standards required under the Basic Law.
Furthermore, the fundamental rights guaranteed under the Basic Law must be respected not only where sovereign powers are transferred, but also where the integration programme is implemented. This may lead to a situation where a provision on integration that had been constitutional at first subsequently becomes unconstitutional if the provision itself gives rise to unconstitutional application practices, reflecting a structural regulatory deficit.

c) The minimum level of fundamental rights protection that must be upheld with regard to international organisations includes effective legal protection. It guarantees the basic right to challenge measures of public authority before a court. The guarantee of effective legal protection pursuant to Art. 19(4) GG not only requires that each administrative act that may potentially violate rights be subject to judicial review regarding matters of fact and law. In addition, courts must also give effect to the relevant rights in practice. Therefore – subject to limitations that derive directly from the Constitution –, access to judicial decisions on the substance of cases must not at any rate be excluded, made factually impossible or more difficult in an unreasonable manner that cannot be justified by factual reasons. Under constitutional law, individuals have a constitutional entitlement to the guarantee of such effective legal protection. If the legislature authorises international organisations or institutions to exercise public authority directly vis-à-vis persons concerned in Germany, it must ensure effective legal protection. In this respect, individual legal protection must be provided by independent bodies that have sufficient jurisdiction and in particular the authority to review and decide that is appropriate to the legal protection sought. Furthermore, these bodies must decide based on proceedings in which the right to be heard is ensured and appropriate means to make pleas and legal assistance, which is freely chosen and informed, are granted. These bodies must also be able to make decisions which adequately and effectively impose sanctions for the violation of a fundamental right. In addition, supranational institutions that afford legal protection must actually exercise their jurisdiction.
This standard corresponds to the requirements of Art. 6(1) ECHR – which, according to Art. 1(2) GG, must be taken into account when interpreting the Basic Law – and the case-law of the ECtHR, which is still binding on parties to the ECHR, even if they transfer sovereign powers to international organisations. Also in that respect, they must ensure protection of fundamental rights equivalent to the protection afforded by the ECHR.
As a substantive guarantee, the guarantee of effective legal protection is part of the law of European Schools, given that all participating states are parties to the European Convention on Human Rights and given that its guarantees also apply to the European Union (Art. 6(2) TEU), which is also a party to the international organisation.

d) The authorisation to transfer sovereign powers according to Art. 24(1) and (1a) GG does not only entail the possibility to transfer the administration of justice to supranational organisations, but also the right to exclude recourse to German courts in that respect. The interpretation and application of supranational law – including the determination of the applicable method – are, within the limits of what is permissible under constitutional law, incumbent upon the bodies that are authorised under international law to afford legal protection. Under Art. 19(4) first sentence GG, persons seeking legal protection are guaranteed recourse to the courts, which requires a legal framework. Legal protection is provided by the state. Before it can be granted, its conditions must be set out and further defined and their scope must be determined in detail. Art. 19(4) GG includes the possibilities of legal protection afforded by statutory law in its effective scope of protection and provides fundamental rights safeguards in that respect. Similar to Art. 33(5) GG it guarantees the relative protection of the existing legal provisions in that respect. Where the legislature deciding on integration matters has transferred the administration of justice to an international court, measures taken by a supranational organisation generally cannot be challenged before German courts. As a right to participation that requires elaboration by the legislature, Art. 19(4) GG generally guarantees legal protection only as laid down in legal provisions and only against acts of German public authority. In that respect, an immediate entitlement to access to German courts follows neither from Art. 24(1) GG nor from Art. 19(4) GG.
The situation is different where international treaties on establishing an international organisation or an integration law provide for access to domestic courts for individuals. Statutes may then limit or even waive the usual immunity of international organisations and institutions.

2. With regard to these standards, the complainants’ submissions do not satisfy the requirement to state reasons pursuant to §§ 23, 92 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).
The complainants did not sufficiently substantiate that the regular courts’ interpretation of Art. 27(7) of the Statute violates Art. 19(4) GG. The complainants did not discuss the reasoning of the challenged judgments that did not recognise German jurisdiction under Art. 27(7) of the Statute in the case at hand. In particular, the complainants did not address the fact that Art. 27(2) first sentence of the Statute provides for sole jurisdiction of the Complaints Board in the first and final instance regarding disputes relating to the lawfulness of a decision on the part of the Board of Governors when executing its powers and adversely affecting the persons concerned. At least according to its wording, this provision also covers disputes concerning an increase in school fees. Contrary to the complainants’ opinion, the competence of the Complaints Board is not necessarily precluded, in light of the wording of Art. 27(2) third sentence of the Statute and in view of its systematic relationship to Art. 27(2) first and second sentence of the Statue, given that the requirements for the Complaints Board reviewing the decisions of the Board of Governors relating to Art. 25 no. 4 of the Statute, which concerns the school fees payable by parents and the relevant implementation provisions, have not been laid down in detail neither in the General Rules of the European Schools nor in the Statute of the Complaints Board or the Rules of Procedure of the Complaints Board.
The complainants’ challenge of the German Act of Approval to the Convention defining the Statute of the European Schools does not satisfy the requirements to state reasons. They did not sufficiently substantiate why the Act might be essential or unconstitutional. It cannot be inferred from the complainants’ submission that the Act has become unconstitutional over time because the Board of Governors did not ensure effective legal protection, which led to structural shortcomings regarding implementation. In particular, the complainants did not set out that the report including reasons of the Chairman of the Complaints Board of 8 November 2004, in which he declared that the Complaints Board is not competent for the review of school fee increases, was not just an error of judgment in the individual case.