These conditions for Germany’s participation in European integration have most recently been affirmed in the ruling of the BVerfG on the European Arrest Warrant handed down on 15 December 2015. This judgment has, moreover, added in terms of fundamental rights protection limits following from Germany’s constitutional identity
In general, sovereign acts of the European Union and acts of German public authority – to the extent that they are determined by Union law – are, due to the precedence of application of European Union Law (Anwendungsvorrang des Unionsrechts), … not to be measured against the standard of the fundamental rights enshrined in the Basic Law (1.). However, the precedence of application of European Union Law is limited by the constitutional principles that are beyond the reach of European integration (integrationsfest) pursuant to Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 GG (2.). This in particular encompasses the principles contained in Art. 1 GG, including the principle of individual guilt in criminal law, which is rooted in the guarantee of human dignity (3.). It has to be ensured that, also in applying the law of the European Union or legal provisions that originate from German public authority but that are determined by Union law, these principles are guaranteed in every individual case (4.). However, one can only claim a violation of this inalienable core of fundamental rights protection before the Federal Constitutional Court if one submits in a substantiated manner that the dignity of the person is in fact interfered with (5.).
1. Pursuant to Art. 23 sec. 1 sentence 1 GG, the Federal Republic of Germany participates in establishing and developing the European Union. Uniform application of its law is of central importance for the success of the European Union … Without ensuring uniform application and effectiveness of its law, it would not be able to continue to exist as a legal community of currently 28 Member States … In this respect, Art. 23 sec. 1 GG also assures that Union law is effective and will be enforced …
Therefore, through the authorisation to transfer sovereign powers to the European Union—an authorisation provided under Art. 23 sec. 1 sentence 2 GG –, the Basic Law endorses the precedence of application accorded to Union law by the Acts of Assent to the Treaties. As a rule, the precedence of application of European Union Law also applies with regard to national constitutional law …, and, in conflict, as a rule, it results in national law being inapplicable in the specific case …
Based on Art. 23 sec. 1 GG, the legislature deciding on European integration matters not only may, generally and in all matters, exempt European Union institutions and agencies from being bound by the fundamental rights and other guarantees under the Basic Law, to the extent that they exercise public authority in Germany, but also German entities that execute law of the European Union … This in particular applies to the legislature at federal and at state level if they transpose secondary or tertiary law without possessing a leeway to design (Gestaltungsspielraum) … In contrast, the legal acts that are issued in using an existing leeway to design are amenable to scrutiny by the Federal Constitutional Court …
2. However, the precedence of application of European Union Law only applies insofar as the Basic Law and the Act of Assent permit or provide for the transfer of sovereign powers … The national order giving effect to Union law at national level (Rechtsanwendungsbefehl), contained in the Act of Assent, may only be given within the framework of the applicable constitutional order … Limits to opening German statehood—limits that apply beyond the specific design of the European integration agenda laid down in the Act of Assent—follow from the Basic Law’s constitutional identity as stipulated in Art. 79 sec. 3 GG (a). This is compatible with the principle of sincere cooperation (Art. 4 sec. 3 TEU) (b) and is corroborated by the fact that the constitutional law of most Member States of the European Union contains similar limits (c).
(a) The scope of precedence of application of European Union Law is mainly limited by the Basic Law’s constitutional identity that, according to Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 GG, is beyond the reach of both constitutional amendment and European integration (verfassungsänderungs- und integrationsfest) (aa). The constitutional identity is safeguarded by the identity review conducted by the Federal Constitutional Court. (bb).
(b) To the extent that acts of an institution or an agency of the European Union have an effect that affects the constitutional identity protected by Art. 79 sec. 3 GG in conjunction with the principles laid down in Arts. 1 and 20 GG, they transgress the limits of open statehood set by the Basic Law. Such an act cannot be based on an authorisation under primary law, because the legislature deciding on European integration matters, despite acting with the majority required by Art. 23 sec. 1 sentence 3 GG in conjunction with Art. 79 sec. 2 GG, cannot transfer sovereign powers to the European Union which, if exercised, would affect the constitutional identity protected by Art. 79 sec. 3 GG … Nor can it be based on initially constitutional conferrals that have supposedly evolved through a development of the law, because the institution or the agency of the European Union would thereby act ultra vires …
(c) Within the framework of the identity review, one has to review whether the principles laid down as inalienable by Art. 79 sec. 3 GG are affected by an act of the European Union … The result of such a review may be that in exceptional cases—as is the case with the
“Solange” reservation (“as long as” reservation) … or with the
ultra vires review … –, Union law must be declared inapplicable in Germany. However, to prevent German authorities and courts from simply disregarding the Union law’s claim to validity, the application of Art. 79 sec. 3 GG in a manner that is open to European law in order to protect the effectiveness of the Union legal order and that takes into account the legal concept expressed in Art. 100 s. 1 GG require that finding a violation of the constitutional identity is reserved for the Federal Constitutional Court … This is underlined by Art. 100 s. 2 GG according to which in case of doubts whether a general rule of international law creates rights and duties for the individual, the court must refer the question to the Federal Constitutional Court… An identity review may also be triggered by a constitutional complaint (Art. 93 sec. 1 no. 4a GG)….
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