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

Date01 July 2011
Published date01 July 2011
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
© 2011 Blackwell Publishing Ltd.

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