Michael McDowell: Ireland should be slow to condemn Karlsruhe

Michael McDowell: Ireland should be slow to condemn Karlsruhe

Michael McDowell

Senator Michael McDowell gives his view on the developing row between the German federal courts and the European Union.

Over the last few weeks, a furore has been whipped up about the decision of the German federal constitutional court at Karlsruhe, the Bundesverfassungsgericht (BVerfG for short), in relation to the ECB’s €2 trillion stimulus package.

The decision, in effect called for the package to be shown to be proportionate to the ECB’s limited monetary policy objectives. If it were not so established, the BVerfG implied that implementing the package might not be lawful under German constitutional law.

This ruling caused outrage in the EU’s establishment. They believe that the only court competent to decide such an issue was the Court of Justice of the European Union in Luxembourg (the CJEU). Not merely that; the same critics believe that Germany is bound to accept the CJEU’s decision on such an issue.

But the issue is not new. And the German position remains quite clear.

The BVerfG has a very clear view of its own jurisdiction to determine whether the Federal Republic is or is not constitutionally bound by CJEU rulings on matters of EU law as they affect member states.

What is that position? The Karlsruhe position is very simple. The EU is not a state. The CJEU is not the supreme court of a sovereign state.

The EU, they say, is a treaty-based entity. The member states of the EU are, as in any treaty, the masters of the EU treaties. Germany, in participating in the EU and its institutions, has never surrendered to those institutions the power to determine as a matter of German constitutional law the meaning of the EU treaties or to issue decisions as to the capacity or obligation of Germany to be bound by those treaties. The powers of the EU institutions are limited by the principle of conferral.

Viewed in that way and in German constitutional terms, the CJEU is, in truth, a treaty tribunal not competent to autonomously determine its own jurisdiction or competence in a way binding on parties to those treaties.

In German jurisprudence, the exclusive, autonomous power of any court to decide the extent of its own jurisdiction is described as kompetenz-kompetenz. This, they say, is not an attribute of the CJEU.

The ultimate decision as to what the EU treaties mean for Germany (and, indeed, for any member state) and the extent of the obligation to be bound by such a decision is a matter to be determined individually by the institutions of that state and not, in the ultimate, a matter solely for the institutions established by those treaties.

This should come as a surprise to nobody. When the Lisbon Treaty was in the course of adoption in June 2009, the BverfG adjudicated on whether that treaty was compatible with German law.

It decided that the Lisbon Treaty was compatible with the Federal Republic’s constitution – but only on the reasoning that the EU was not becoming a sovereign federal state, that the CJEU would not enjoy kompetenz-kompetenz, that Germany retained the legal power to determine in the ultimate the extent of its obligations under the treaties, that the member states were still the masters of the EU treaties, and that the EU did not and would not have ultimate autonomy in deciding such matters.

Lest anyone think that this just was an example of German big state exceptionalism, it is worth noting that the Czech constitutional court also came to a similar conclusion on similar reasoning at the same time.

The senior judge at Karlsruhe, Peter Huber, evidently stung by hysterical criticism coming from the EU Commission and federalist lawyers, told London’s The Times last week that the idea of “limitless primacy” for EU law implies the existence of an EU state, an idea not found in the EU treaties and not accepted by any member state.

He tellingly pointed out that the CJEU in Luxembourg, whenever the issue of EU competences under the treaties has arisen before it, has only decided against EU competence on three occasions in tens of thousands of cases since 1951.

Nowhere is its insatiable ambition for aggrandisement more on display than in its obstruction of the provisions of the Lisbon Treaty that explicitly mandate the EU to accede to the European Convention on Human Rights of which the Strasbourg court is the treaty tribunal. An agreement for the accession of the EU to the ECHR was rejected by the CJEU in its infamous Opinion 2/13 that interpreted EU treaties so as to effectively frustrate the clear obligation on the EU to accede to the ECHR.

It did not matter that the equally clear treaty mandate to accede to the ECHR was effectively interpreted out of existence.

For all its faults and unlike the CJEU, Strasbourg hears evidence, hears substantial argument and rebuttal from the parties, allows real interaction between the judges and the parties, gives detailed transparent judgments dealing with parties submissions, and permits minority judgments.

Ireland should be slow to condemn Karlsruhe; our own interests may lie in keeping a limited role for the CJEU as a treaty tribunal.

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