The Lisbon Judgment of the German Constitutional Court, the Primacy of EU Law and the Problem of Kompetenz‐Kompetenz: A Conflict between Right and Right in Which There is No Praetor1

• DOI: http://doi.org/10.1111/j.1468-0386.2011.00559.x
• Date: 01 July 2011
• Author: Gunnar Beck
• Published date: 01 July 2011

eulj_559470..494

The Lisbon Judgment of the German

Constitutional Court, the Primacy of EU

Law and the Problem of

Kompetenz-Kompetenz: A Conf‌lict

between Right and Right in Which

There is No Praetor1

Gunnar Beck*

Abstract: The ECJ has long asserted its Kompetenz-Kompetenz (the question of who has

the authority to decide where the borders of EU authority end) based on the Union treaties

which have always def‌ined its role as the f‌inal interpreter of EU law. Yet, no national

constitutional court has accepted this position, and in its Lisbon Judgment of 2009 the

German Constitutional Court (FCC) has asserted its own jurisdiction of the f‌inal resort’

to review future EU treaty changes and transfers of powers to the EU on two grounds: (i)

ultra vires review, and (ii) identity review. The FCC justif‌ies its claim to constitutional

review with reference to its role as guardian of the national constitution whose require-

ments will constrain the integration process as a standing proviso and limitation on all

transfers of national power to the EU for as long as the EU has not acquired the

indispensable core of sovereignty, i.e. autochthonous law-making under its own sovereign

powers and constitution, and instead continues to derive its own power from the Member

States under the principle of conferral. Formally therefore, at least until such time, the

problem of Kompetenz-Kompetenz affords of no solution. It can only be ‘managed’, which

requires the mutual forbearance of both the ECJ and FCC which both claim the ultimate

jurisdiction to decide the limits of the EU’s powers—a prerogative which, if asserted by

both parties without political sensitivity, would inevitably result in a constitutional crisis.

The fact that no such crisis has occurred, illustrates the astute political acumen of both the

FCC and the ECJ.

* Reader in EU Law and Legal Theory, SOAS, University of London, and Barrister, Henderson Chambers

and Great James Chambers, London.

1I used to attribute this evocative description of ethical dilemmas resulting from conf‌licting ethical obliga-

tions to G.W.F. Hegel’s Philosophy of Right. However, upon rereading Hegel three years ago I discovered

that rather like the sea-encrusted statue of Glaucon ravaged by time, the evocative turn of phrase I recalled

bore scant resemblance to Hegel’s original. In breeding reptiles of the mind I had inadvertently and

uncharacteristically improved on the quotation. This obviates the need for a precise acknowledgement.

[Note: The f‌irst sentence in footnote 1 has been corrected in the online version of this article on 5

September 2011 after f‌irst publication online on 14 July 2011 in European Law Journal Volume 17,

Number 4.]

European Law Journal, Vol. 17, No. 4, July 2011, pp. 470–494.

© 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

The problem of Kompetenz-Kompetenz concerns the question of which court decides

the boundaries of the EU’s legislative competence: the Court of Justice of the European

Union (EU)2on the basis of the authority has been granted in the EU treaties and with

a view to the uniform application of Union law, or national constitutional courts with

reference to the overriding requirements of the national constitutional law of their

Member States and to the terms of national accession to the EU ratif‌ied by national

parliaments. The issue has been brought to the fore again by the entry into force of the

Lisbon Treaty that codif‌ies the principle of the supremacy of EU law previously

developed in the case law by the Court of Justice (hereafter also referred to as ECJ). The

doctrine of supremacy is not limited to the EU treaties and secondary legislation made

under the treaties but extends to the case law of the Court of Justice, which therefore

regards itself the ultimate arbiter of all questions concerning the scope, validity and

interpretation of all questions of EU law. By contrast, the Bundesverfassungsgericht,

that is, German Federal Constitutional Court (hereafter mainly referred to as FCC), in

its so-called Lisbon Judgment of 2009 has asserted its own jurisdiction of the last resort

in relation to any issues involving potential clashes between EU and German consti-

tutional law. The Court’s claim is based on a comprehensive analysis of the underlying

structure of the relationship between EU and national law from the perspective of

national constitutional law, which both builds and extends the views set out in its

famous Maastricht judgment of 1993.

Some commentators, including Daniel Thym in his detailed comprehensive analysis3,

have suggested that in the Lisbon Judgment the FCC goes much further in spelling out

the constitutional limits of the integration process than it previously did and at the

same time asserts a traditional view of sovereignty likely to enhance the prospect of

future judicial conf‌lict at the highest level over the precise scope of EU legal and

political integration. In the author’s view such claims are misconceived and exagger-

ated as they overemphasise the ‘mechanistic’, purely formal principles governing the

interaction between imperfectly integrated distinct legal systems at the expense of the

more diff‌icult but ultimately necessary consideration of the intangible sources of judi-

cial f‌lexibility, political sensitivity and mutual forbearance.

I The Primacy Principle

Declaration 17 concerning the provisions of the Treaty on European Union (TEU) and

the Treaty on the Functioning of the European Union (TFEU) provides as follows:

Declaration concerning primacy

The Conference recalls that, in accordance with well settled case law of the Court of Justice of the

European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have

primacy over the law of Member States, under the conditions laid down by the said case law.

The precise status of Declarations annexed to EU treaties and their predecessor treaty,

the European Community Treaty in its various revised versions up to December 2009,

is not entirely clear. Protocols annexed to the treaties have the same legal status as the

2On 1 December 2009 the distinction that existed since 1992 between the EC (European Community) and

the EU was abolished together with the replacement of the EC Treaty with the Treaty on the Functioning

of the EU. As a result references to the EC and EC law are now purely historical and the terms EU and

Union law will generally be referred in this article unless the historical reference is clear.

3D. Thym, ‘In the Name of Sovereign Statehood: A Critical Introduction to the Lisbon Judgment of the

German Constitutional Court’, (2009) 46 Common Market Law Review 1795–1822.

July 2011 The Lisbon Judgment and Kompetenz-Kompetenz

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