Preservation of constitutional identity against the EU in the german constitutional jurisprudence
DOI:
https://doi.org/10.18042/cepc/rdce.72.03Abstract
The German Federal Constitutional Court (GFCC) has based on the “eternity
guarantee” of article 79.3 of the German Constitution the affirmation of the
constitutional identity of this country against the European Union (EU) and its law.
From this guarantee the constitutional relationship with the EU is developed and
the TCFA has been establishing in its jurisprudence the structural conditions that
this constitutional identity imposes for the participation of Germany in the EU:
controlled transfer of powers that preserves the basic prerogatives of the German
Parliament and democracy; consideration of the EU as an international organization,
lacking original sovereignty; control of the limits of EU law by the GFCC.
This Court has developed two forms of control: identity control and ultra vires
control. Identity control is directly related to the «eternity guarantee» and the GFCC
scrutinizes whether the EU measure in question infringes what is unavailable according
to this “eternity guarantee”, in such a way that it would be competences that Germany
could never transfer to the EU. Ultra vires control is directly based on the principle
of democracy and through it the GFCC verifies whether there is a competence
democratically transferred to the EU to avoid a violation of popular sovereignty. In
many of its decisions, the GFCC has recognized the primacy of Union law and the
interpretative competence of the CJEU, but in several rulings, some of them highly
controversial, it has established external limits to this primacy by applying ultra vires
and identity controls.
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