scholarly journals The German Federal Constitutional Court’s Exercise of Ultra Vires Review and the Possibility to Open an Infringement Action for the Commission

2020 ◽  
Vol 21 (5) ◽  
pp. 1078-1089
Author(s):  
Sara Poli ◽  
Roberto Cisotta
Keyword(s):  
Case Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Related Case ◽  
The Public ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
Article 5

Abstract The paper examines the possible opening of an infringement procedure against Germany as a result of the breaches that emerge from the declaration by the German Constitutional Court that the Court of Justice has acted ultra vires in the Weiss judgment (C-493/17). The proportionality assessment of the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), carried by the Court of Justice, is contested by the domestic court. We recall that the Commission enjoys great discretion regarding the launch of an infringement action based upon Article 258 of the TFEU and may be reluctant to use its powers, considering the special position of the constitutional courts in the context of Article 267 TFEU as well as the present situation of emergency following the pandemic. Yet, the possibility to start an infringement procedure for breaches of Treaty obligations resulting from an incorrect interpretation of domestic courts was admitted in case C-129/00 Commission v. Italy and applied in two subsequent cases (C-154/08 Commission v. Spain and C-416/17 Commission v. France). As a result of the ruling of May 5, 2020, the Court of Justice may find that Germany failed to fulfil obligations stemming from Article 267 TFEU and the related case-law, Article 19 TEU, as well as Article 5(2) TEU. Other breaches concern the independence of the ECB and of the Bundesbank (being it a Member of the European System of Central Banks (ESCB) and of the Eurosystem) as defined in Articles 130, 282(3) TFEU and Article 7 of the Protocol (No. 4) on the Statute of the ESCB and of the ECB. We argue in favour of the violation of all these provisions read in conjunction with the duty of loyal cooperation, laid down in Article 4(3) TEU. Yet, we conclude that it is uncertain whether the Commission will open (or continue) an infringement procedure against Germany since the Bundesbank may act to satisfy the requests of the German Constitutional Court in relation to the proportionality of the PSPP. It is to be hoped that the German State organs will make sure that the PSPP may be continued, thus ensuring the functioning of the Eurozone, despite the attack of the BVerfG to the EU Judicature and to Weiss ruling in particular.

Lawyer's Ranking From A Constitutional Perspective: The Federal Constitutional Court's JUVE-Handbook Decision

2003 ◽  
Vol 4 (3) ◽  
pp. 237-245 ◽  
Author(s):  
Kristofer Bott
Keyword(s):  
Publishing Industry ◽  
Freedom Of Expression ◽  
Federal Court ◽  
Constitutional Court ◽  
The Public ◽  
Court Of Justice ◽  
Basic Law ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
Article 5

In November, 2000, the Bundesverfassungsgericht (Federal Constitutional Court) surprised the public by holding that the publisher's freedom of expression and press secured by Article 5 of the Grundgesetz (Basic Law) could be violated if the publication of advertisements was prohibited, provided the advertisement is included in the scope of protection itself. At that time shocking advertisements were being heavily discussed in the public. This public debate had been sparked, in part, by the Bundesgerichtshof (Federal Court of Justice) decision prohibiting Stern Magazine's publication of advertisements containing repulsive pictures on behalf of the fashion and lifestyle brand Benetton. The magazine complained to the Federal Court of Justice against this judgment, an appeal that generated the dictum quoted above. In November, 2002, the Federal Constitutional Court had another opportunity to characterize the importance of the freedom of expression and the press in competition law, particularly in the context of the publishing industry.

Blind Date Between Familiar Strangers: The German Constitutional Court Goes Luxembourg!

2014 ◽  
Vol 15 (2) ◽  
pp. 369-382
Author(s):  
Asteris Pliakos ◽  
Georgios Anagnostaras
Keyword(s):  
Constitutional Court ◽  
Central Importance ◽  
Constitutional Courts ◽  
New Era ◽  
Court Of Justice ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
Institutional Relationships ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Preliminary references by national constitutional courts are not an everyday occurrence in Union law. No surprise, therefore, that they attract considerable publicity and give rise to a significant amount of academic comment. However, the recent preliminary request of the German Federal Constitutional Court (GFCC) inGauweilerconstitutes undoubtedly the most important and historic preliminary reference made thus far by a constitutional court. This is not only because it is the very first preliminary request of this particular court, inaugurating potentially a whole new era in its institutional relationships with the Court of Justice and paving the way for other national constitutional courts to make more regular recourse to the preliminary reference procedure; but also because it relates to an issue of central importance for the process of European integration with far reaching economic and political repercussions.

Das PSPP-Urteil des Bundesverfassungsgerichts: Umfang der Übertragung von Souveränität und Überprüfung von Ermessensgebrauch

IG ◽  
2021 ◽  
Vol 44 (3) ◽  
pp. 220-226
Author(s):  
Achim-Rüdiger Börner
Keyword(s):  
Member State ◽  
Constitutional Court ◽  
The Public ◽  
Court Of Justice ◽  
European Court ◽  
Federal Constitutional ◽  
National Constitution ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
The Eu

In its judgment of 5 May 2020, the German Federal Constitutional Court (FCC) has held that the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), which started in 2015, and the relevant decision of the European Court of Justice (ECJ) of 11 December 2018, holding that the programme is compatible with European Union (EU) law, are ultra vires acts. Indeed, this decision is based on a French understanding of discretion which has previously been adopted in the European Treaties and according to which discretion is controlled only for undue, illegal influence. Today, the Treaties have adopted a review of discretion under the aspects of suitability, necessity, and appropriateness. Moreover, criticism at the decision of the FCC neglects that the accession to and the membership in the EU have to observe the thresholds of the respective national constitution, as its violation is not and may not be expected by the Union or any other Member State. Ultra vires acts of the Union, which remain uncorrected by the Union itself, are subject to disapproval and rejection by the constitutional court of any Member State.

The German Constitutional Court and Preliminary References—Still a Match not Made in Heaven?

2015 ◽  
Vol 16 (6) ◽  
pp. 1491-1508
Author(s):  
Eva Julia Lohse
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
In The Beginning ◽  
The Eu

So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth:BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by theBVerfGabout the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of theBVerfGremain the same after this single referral and offer explanations as to why theBVerfGhad for nearly sixty years not referred a question to the former European Court of Justice (ECJ).

Activation of theUltra ViresReview: TheSlovak PensionsJudgment of the Czech Constitutional Court

2013 ◽  
Vol 14 (7) ◽  
pp. 959-973 ◽  
Author(s):  
Georgios Anagnostaras
Keyword(s):  
National Level ◽  
National Court ◽  
Case Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
German Constitutional Court

It is now almost two decades since the German Constitutional Court proclaimed inMaastrichtits capacity to review whether the Union institutions respect the limits of their conferred competences and to pronounce inapplicable at national level all legal instruments adopted by them in transgression of these boundaries. Thisultra viresdoctrine inspired the case law of several other constitutional courts, which announced their intention to operate in exceptional circumstances as anultima ratioagainst the violation by the Union institutions of the principle of conferral. The German Constitutional Court itself emphatically reaffirmed on various occasions its role as the ultimate protector of constitutionality against theultra viresintroduction and interpretation of Union law, most prominently in its eminentLisbonruling. Until recently though, there was no actual precedent of a national court proclaiming a Union act asultra vires.Even when a constitutional court reviewed the contested act onultra viresgrounds, it eventually concluded that it complied with the principle of conferred powers.

International Jurisdiction for Investor Claims Based on Prospectus Liability following CJEU 12.9.2018, C-304/17, Löber/Barclays

2021 ◽  
Vol 12 (1) ◽  
pp. 65-81
Author(s):  
Thomas Thiede ◽  
Steffen Lorscheider
Keyword(s):  
European Union ◽  
Financial Markets ◽  
Methodological Approach ◽  
Case Law ◽  
The European Union ◽  
Related Case ◽  
Procedural Law ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Prospectus Liability

Abstract Lately, the value of many products on foreign financial markets has dropped considerably. As a result, affected investors regularly strive to hold the issuers of these products liable before domestic courts. In the following, the relevant European rules of international civil procedural law and the related case law of the Court of Justice of the European Union will be examined. Thereafter, a fresh methodological approach to the questions at hand will be presented.

scholarly journals Separation versus Fusion – or: How to Accommodate National Autonomy and the Charter? Diverging Visions of the German Constitutional Court and the European Court of Justice

2013 ◽  
Vol 9 (3) ◽  
pp. 391-419 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Counter Terrorism ◽  
Court Of Justice ◽  
European Court ◽  
Separation Thesis ◽  
National Autonomy ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
German Federal Constitutional

German Federal Constitutional Court's dialogue with the European Court of Justice – Background, trigger, contents and context of the FCC's reaction to the Åkerberg Fransson judgment – The FCC's Counter-Terrorism Database judgment – Constitutional control standards – theoretical repercussions of the judicial dispute – Underlying conceptual differences – The ‘fusion thesis’ versus the ‘separation thesis’ – Pragmatic approximation of divergent positions

scholarly journals The Constitutionality of Negotiated Criminal Judgments in Germany

2014 ◽  
Vol 15 (1) ◽  
pp. 81-105 ◽  
Author(s):  
Thomas Weigend ◽  
Jenia Iontcheva Turner
Keyword(s):  
Criminal Law ◽  
German Law ◽  
Plea Bargaining ◽  
Federal Court ◽  
Constitutional Court ◽  
German Version ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
German Constitutional Court

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. The German version of plea bargaining, which had grown from the grassroots of criminal law practice, was later accepted by the Federal Court of Justice and written into § 257c of the Code of Criminal Procedure (StPO) in 2009. In light of these developments, a verdict of unconstitutionality by the Federal Constitutional Court was the final hope of those who opposed the replacement of the search for truth with a system of negotiation. The Court deflated these hopes, but at the same time refrained from giving an unconditional stamp of approval to the burgeoning practice of negotiating judgments. The Court attempted to rein in that practice by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework.

Multilevel cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund

2010 ◽  
Vol 6 (2) ◽  
pp. 175-198 ◽  
Author(s):  
Andreas Voβkuhle
Keyword(s):  
Human Rights ◽  
Federal Court ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Basic Law ◽  
European Court ◽  
Broad Concept ◽  
Federal Constitutional ◽  
German Constitutional Court

Broad concept of constitutional jurisdiction – Triangle between Karlsruhe, Strasbourg and Luxembourg – European vocation of the German Constitutional Court and Basic Law – European Convention on Human Rights – Karlsruhe decisions can be reviewed in Strasbourg – Human rights-related constitutional court – European Court of Justice developed into constitutional court of the Union – Verbund between three courts – No simplistic hierarchy – Verbund techniques – Dialogue in Human Rights; Interplay in Integration – Federal Constitutional Court and European Court of Human Rights functionally comparable – Both Courts seek substantive coherence as Verbund technique – Federal Constitutional Court commits all German authorities to the Convention – Federal Constitutional Court and ECJ – Principle of openness to European Law – Sharing and assigning responsibilities in complex system – Solange, ultra vires and identity review – Responsibility for integration, due by Court and other German bodies – Federal Court contributes to common European Constitutional order – Europe-wide discursive struggle and ‘Lernverbund’

scholarly journals Friendly Takeover, or: the Power of the ‘First Word’. The German Constitutional Court Embraces the Charter of Fundamental Rights as a Standard of Domestic Judicial Review

2020 ◽  
Vol 16 (2) ◽  
pp. 187-212 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Eu Law ◽  
Court Of Justice ◽  
Gradual Evolution ◽  
Charter Of Fundamental Rights ◽  
German Constitutional Court ◽  
Constitutional Identity

Five decades of interaction between the Bundesverfassungsgericht and the Court of Justice – Reversal of the Solange decisions – Jurisdictional upgrade of the Charter under domestic constitutional law – Continuity of the ultra vires and constitutional identity caveats – Differences between the First and Second Senate in the approach towards EU law – Preliminary references as a new normality – Projection of the experience and doctrinal rigour of the German fundamental rights case law on the European level – ‘Primary’ application of the Grundgesetz as pragmatic guidance – Gradual evolution of overarching standards – Ordinary courts as an institutional counterbalance to the Bundesverfassungsgericht – Insistence on leeway for relative national autonomy in the interpretation and application of the Charter.

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