CONSTITUTIONAL COURT AND EUROPEAN INTEGRATION: THE GERMAN EXPERIENCE

Abstract

The European Union is a supranational organization based on a legal order which has been created by the transfer of internal competences by the member states. This transfer means a limitation of sovereignty, by giving the supranational institutions the permission to act in these fields of competence politically, in particular to make legislation with direct normative effect in the internal order of the member States. The German Constitutional Court explains the consequences of such a transfer: State sovereignty opens, the legal order of the state is no longer exclusively national and closed but opened so that supranational law can enter directly into the national legal order. The State no longer claims the exclusive validity of its own laws on its territory. National law and supranational law, both have legal effect within the State.

The transfer of internal competences to the European Communities and later to the European Union has been effectuated by treaties of the member States, the foundation treaties as well as the various reform treaties, which have attributed these competences to the supranational institutions. The consent of the member States to these treaties have been given by parliamentary acts which are the internal legal basis for the competence transfer. Thus, we can state a double dimension of this transfer: the internal parliamentary act which approves the treaty, in which the competences of the supranational institutions are enumerated.

This act of approval (Zustimmungsgesetz), as an act of the national Parliament, is the basis for the
constitutional justice control. The act is of great importance for various reasons: it reflects the will of

Germany to accomplish integration within the finalities formulated in the treaty. The so-called integration program is determined by this treaty to which the national act of approval refers. If the supranational institutions would act outside the integration program, this action would be ultra vires. This means in particular that an action of these institutions without a competence transferred by the treaty would not be covered neither by the treaty nor by the act of approval to this treaty and therefore not compatible with Constitutional law.

We can therefore state:

1. The Constitution gives the permit to transfer national competences to the supranational organizations; the relevant articles are 23.1 for the period from the creation of the European Union in 1993 on and 24.1 for the period before.

2. The transfer is effectuated by an international (or better: supranational) treaty between the member States determining the supranational competences for Europewide legislation and the national act of approval to this treaty, which realizes the constitutional transfer permit.

3. The act of approval has various functions: (a) it enables the State President to ratify the transfer treaty, (b) it determines the “integration program” which is the normative framework for the actions of the supranational institutions and must be strictly observed by them, (c) it is the reason for the normative validity (Geltungsgrund) of supranational law, and (d) the basis for the supranational structure of the EU (former: EC) legal order, in particular for its direct normative effect in the member States and for its primacy over national law.