Defiance by a Constitutional Court—Germany

2017 ◽  
Author(s):  
Franz C Mayer
Keyword(s):  
European Integration ◽  
International Cooperation ◽  
Constitutional Court ◽  
Future Developments ◽  
National Courts ◽  
Problematic Issue ◽  
German Constitution ◽  
German Constitutional Court

This chapter considers the highly problematic issue of defiance by a court. Notably, the chapter focuses on defiance by national courts in the context of European integration—a phenomenon which has occurred with some frequency. Still more specifically, this chapter turns to the German Constitutional Court’s approach to European integration. Though the 1949 German Constitution (the Grundgesetz) appears to be more open for European and international cooperation than most other constitutions on the continent, it too seems to be edging toward defiance. As a first step it is thus necessary to take a closer look at the broader picture of the German constitutional landscape, in particular at the German Constitutional Court and its decisions on European integration. Based on that broader account of cases, the chapter then assesses the degree and motivations of defiance and to reflect on possible future developments.

‘An Association of Sovereign States’

2009 ◽  
Vol 5 (3) ◽  
pp. 391-406 ◽  
Author(s):  
Roland Bieber
Keyword(s):  
European Integration ◽  
Critical Assessment ◽  
Lisbon Treaty ◽  
Court Decision ◽  
Constitutional Court ◽  
German Constitution ◽  
German Constitutional Court ◽  
Conceptual Foundations ◽  
Fundamental Requirement ◽  
The Eu

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Continuing sovereignty of member states under the EU Treaty – Extended constitutional limits to European integration (‘eternity clause’) under German Constitution, but these are not violated by Lisbon Treaty – Composition of European Parliament does not satisfy fundamental requirement of democracy but does not violate German Constitution since EU is not a state – Critical assessment of conceptual foundations of decision

The Ruling of the German Constitutional Court on the Treaty of Lisbon

2009 ◽  
Vol 10 (8) ◽  
pp. 1259-1262 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
European Integration ◽  
Daily Basis ◽  
Constitutional Court ◽  
Great Length ◽  
Integration Process ◽  
Treaty Of Lisbon ◽  
Basic Law ◽  
German Constitutional Court ◽  
Political Spectrum ◽  
German People

Generations of politicians and lawyers will have to read and re-read the recent ruling of the German Constitutional Court of 30 June 2009 regarding the Treaty of Lisbon (“Lisbon Case”) on almost a daily basis for many years to come. The Court, master of its own proceedings and not feeling bound by any doctrine of judicial self-restraint, has expounded in this decision at great length about its own philosophy of the European integration process. Based on its self-established theory, in which every German citizen is holder of a democratic right to a legislature that is endowed with substantial powers to determine the destiny of the German people, the Court examined the Treaty in each and every detail. The claimants, alleging through a constitutional complaint that this democratic right had been breached, could not point to any specific injury that they had suffered. In real terms, their constitutional complaints amounted to an ‘abstract' review of the Treaty, a remedy which the Basic Law reserves for the federal government, any government of a Land, or for a third of the members of the Bundestag. But the Court saw the constitutional complaints, which had been filed by the extreme right and the extreme left of the political spectrum, as a welcome opportunity to define the constitutional limits of the European integration process. Far from reflecting the views of the framers, the ruling reads like a political manifesto from the judges.

The Long and Difficult Road Towards Integration. The Legal Debate on the Maastricht Treaty in Germany and the Judgment of the Constitutional Court of October 12, 1993.

1994 ◽  
Vol 7 (1) ◽  
pp. 23-42
Author(s):  
Stephan Hobe
Keyword(s):  
European Integration ◽  
Maastricht Treaty ◽  
Constitutional Court ◽  
The European Union ◽  
German State ◽  
Democratic Control ◽  
German Constitutional Court ◽  
German Bundestag ◽  
Number Of Individuals ◽  
Difficult Road

At the end of 1992 the law ratifying the Maastricht Treaty was passed by the German Bundestag without much discussion. Yet a heated legal debate developed later when a number of individuals filed claims with the German Constitutional Court seeking to prevent the deposit of the instrument of ratification. They claimed a violation of their basic rights owing to the envisaged transfer of sovereign competence from the German State to the European Union, with the purported result of loss of democratic control. In its judgment of October 12, 1993, however, the German Constitutional Court gave its approval to ratification of the Maastricht Treaty. This article analyses and examines the arguments put forward in the claims, that raised questions of statehood and led to consideration of the scope and limits of European integration. The author concludes with a favourable appraisal of the judgment, although he comments that it leaves unanswered the question of how the concepts of European integration and ‘preservation of statehood’ are to be reconciled.

When, if not Now? An Update on Civil Partnership in Germany

2016 ◽  
Vol 17 (3) ◽  
pp. 487-508 ◽  
Author(s):  
Anne E.H. Sanders
Keyword(s):  
German Law ◽  
Case Law ◽  
Constitutional Court ◽  
Same Sex ◽  
Same Sex Couples ◽  
Recent Developments ◽  
German Constitution ◽  
German Constitutional Court ◽  
Same Sex Parents ◽  
Open Marriage

Following the article “Marriage, Same-Sex Partnership, and the German Constitution,” which was published in theGerman Law Journalin 2012 (seeAnne Sanders,Marriage, Same Sex Partnership and the Constitution, 13 German L.J. 911 [2012]), this article provides an update on recent developments in relation to same sex partnerships in Germany. The focus of this Article is case law of the German Constitutional Court from 2002 through today, but it also discusses other court decisions in relation to the rights of same sex parents. The Article concludes with an examination of a recent draft law which—if successful—will open marriage to same sex couples. While its chances for success are extremely slim, this Article argues that same sex marriage will eventually be introduced in Germany.

scholarly journals The right to a self-determined death as expression of the right to freedom of personal development: The German Constitutional Court takes a clear stand on assisted suicide

2020 ◽  
Vol 46 (6) ◽  
pp. 416-417 ◽  
Author(s):  
Ruth Horn
Keyword(s):  
End Of Life ◽  
Personal Development ◽  
Assisted Suicide ◽  
Historical Context ◽  
Federal Court ◽  
Constitutional Court ◽  
German Constitution ◽  
German Constitutional Court ◽  
Post War ◽  
The Right

On 26 February 2020, the German Constitutional Court rejected a law from 2015 that prohibited any form of ‘business-like’ assisted suicide as unconstitutional. The landmark ruling of the highest federal court emphasised the high priority given to the rights of autonomy and free personal development, both of which constitute the principle of human dignity, the first principle of the German constitution. The ruling echoes particularities of post-war Germany’s end-of-life debate focusing on patient self-determination while rejecting any discussion of active assistance to die through a lethal injection administered by a doctor. This brief report discusses the ruling in the light of the broader sociopolitical and historical context of the German end-of-life debate.

scholarly journals Why the European Union is not a State

2009 ◽  
Vol 5 (3) ◽  
pp. 407-420 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Critical Analysis ◽  
State Sovereignty ◽  
Constitutional Court ◽  
Democratic Deficit ◽  
The European Union ◽  
German Constitution ◽  
German Constitutional Court ◽  
The Right ◽  
Relative Concept ◽  
The Eu

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Analysis of inconsistencies – Differences between the EU and a state – Sovereignty of the member states and Kompetenz-Kompetenz – Argument for a relative concept of sovereignty – Sovereignty and the right to withdraw – Critical analysis of BVerfG's assessment of the EU's democratic deficit and denial of the importance of the European Parliament

scholarly journals Defending Sovereign Statehood Against Transforming the Union Into a State

2009 ◽  
Vol 5 (3) ◽  
pp. 353-373 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
Case Law ◽  
Court Decision ◽  
Democratic Legitimacy ◽  
Constitutional Court ◽  
Legislative Authority ◽  
German Constitution ◽  
German Constitutional Court ◽  
German Parliament ◽  
State Legislative ◽  
The Eu

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Overview of earlier case-law – Analysis of the judgment – Comparison with earlier case-law – The Court's reference to sovereignty – The concept of democratic legitimacy – Participation of the German Parliament – Transformation of the EU into a state – Creeping evisceration of state legislative authority – Assessment of the judgment

The Franco-German Constitutional Divide

2009 ◽  
Vol 5 (3) ◽  
pp. 374-390 ◽  
Author(s):  
Jan-Herman Reestman
Keyword(s):  
National Identity ◽  
Court Decision ◽  
Constitutional Court ◽  
State Identity ◽  
Constitutional Patriotism ◽  
Key Word ◽  
German Constitution ◽  
German Constitutional Court ◽  
Current Union ◽  
Nation People

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – ‘Identity’ key word of the Lissabon-Urteil – The national identity clause in the current Union Treaty – Nation: people and state; diachronic and synchronic identity – Constitutional patriotism – The national identity clause in the Lisbon Union Treaty – Volksidentität and state identity – Verfassungsidentität: diachronic identity – Identité constitutionnelle de la France: synchronic identity – confidence and diffidence in the Union

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