The EU Battle on the Last Word and the Environment

In May 2020, the German constitutional court decided that under certain conditions, a decision by the Court of Justice of the European Union should or could be ignored by a national court, which would have the last word to decide on the compatibility with the EU Treaties of a measure adopted by an EU institution or body. The contribution examines, whether this German decision is compatible with the EU Treaties and concludes that it this is not the case.

So Long Solange? The PSPP Judgment of the German Constitutional Court and the Conflict between the German and the European ‘Popular Spirit’

The judgment by the German Constitutional Court (‘BVerfG’) of 5 May 2020 has caused a stir all over Europe. The relationship between the BVerfG and the European Court of Justice (‘ECJ’) has never been an easy one, especially after the Solange judgment of 1974. The Solange jurisprudence has, however, not only been synonymous with conflict and rivalry but also for dialogue and, eventually, mutual respect. With the PSPP judgment, this dialogue seemed to have found an end, while by the order of 29 April 2021 the BVerfG appears to have returned to a more conciliatory tone. Nonetheless, the disruption between Karlsruhe and Luxembourg persists. In this article, the PSPP judgment will be examined in detail, presenting it as the last step of long, contorted jurisprudence. It will be shown that the rupture that occurred in May 2020 was technically unnecessary and rather the result of deep-rooted cultural conflict with a clear economic background. The legal reasoning on both sides—that of the BVerfG and that of the PSPP judgment's most outspoken critics—is problematic at best. While for the time being the BVerfG seems to have learnt the lesson from the conflict provoked by its own judgment, the underlying, substantive conflict is still unresolved. It will be shown that this conflict can only be solved on a political level. Thereby, cultural pre-concepts will have to be overcome. Uncompromising reliance on a national ‘popular spirit’ (Volksgeist) will not offer a way out but neither will, for the time being, exclusive reference to a European Volksgeist ignoring Member State realities. The ‘weighing and balancing’ the BVerfG has missed in the previous Weiss ECJ preliminary ruling (again on the PSPP programme) will have to take place on a far broader scale.

Tenancy Laws in Berlin

Berlin is facing large increases in rent levels over the last decades. To overcome pressure on the market, the Senate of the city has repeatedly introduced rent controls. While the German Constitutional Court has found the latest rent-controlling legislation, the Price Ceiling Act of 2020 to be violating German constitutional law and hence invalid and void, there is strong economic evidence for why rent controls do more harm than good and after all even lead to a decrease in housing provided. To provide for affordable housing, the City of Berlin needs to pursue other measures that stipulate the construction of new housing: the increase and acceleration of the granting of building permits, release of shallow land and actively engage in municipal construction.

The Legal and Economic Questions posed by the German Constitutional Court’s decision in the Public Sector Purchase Programme (PSPP) Case

This paper seeks to explore the PSPP decision of the German Constitutional Court and its effect on the monetary policy decisions taken by central banks. It begins by exploring the decision and its effect in Germany, together with its wider implications for the European Monetary Union before moving onto consider the standard of review that should be applied by the Courts when they are required to review central banks actions. Conclusions are reached to show that any standard of review should be limited because of the unique economic and political circumstances in which central bank decision making takes place. Keywords: Central Banking; Judicial Review; Proportionality; European Law; European Monetary Union.

Freiheit heißt Leben

Liberty means to live. That is what Christian Jasper is convinced about regarding the understanding of liberty in German law and Christian faith. The author introduces the reader in the letter Samaritanus bonus on the care of persons in the critical and terminal phases of life which the roman catholic Congregation for the doctrine of the faith published on 14th July 2020. Therefore, the author compares theological and legal understandings of the idea of liberty. Whereas the German Constitutional Court puts much emphasis on the defence of autonomy the author highlights that human dignity implies more than the individual right to act arbitrarily. Modern societies require individuals who behave moral. The challenge is to avoid misunderstandings between the different faculties and to find wise compromises between moral expectations and legal rules in a liberal society. The lecture of Samaritanus bonus may help to improve the public discussion.

The New Constitutionalism and its Discontents

<Online Only>This chapter examines the unsettling of the political constitution by domestic challenges to the euro crisis response, particularly against the actions of the European Central Bank (ECB). The disconnect between postnational discourse and domestic constitutionalism generated critical constitutional moments over who was ‘the guardian’ of the European constitution. These moments were exemplified by the OMT saga, when the German Constitutional Court threatened to invalidate an ECB programme that had existential implications for the eurozone. The chapter will examine how the ECJ’s assertive ruling, in response, did not signal the perfection of European constitutionalism, as suggested by the new constitutionalists, but revealed its precarity, rubber-stamping a programme that was of dubious legitimacy. If this would ‘buy time’ for the project, it would do so in a way that merely concealed the dysfunctionality of Economic and Monetary Union. The chapter concludes that authoritarian liberalism was, ultimately, juridically fortified by these challenges, but left open to further constitutional contestation, revealing the erosion of sovereignty underlying the European construct.</Online Only>

The Post-sovereign Constitution or the Return of Sovereignty?

<Online Only>This chapter outlines how the political constitution after Maastricht developed into a paradoxical configuration, whereby EU constitutional authority was augmented in specific areas, but was subject to increasing domestic contestation. This generated heightened constitutional conflicts in formal arenas, particularly in the jurisprudence of the German Constitutional Court, which will be examined in this chapter, and social and political contestation and opposition in informal arenas (examined in the next chapter). The chapter outlines how issues of sovereignty and domestic constituent power resurfaced after their post-war sublimation, but without obvious practical moment, since the judicial practice and academic discourse of European constitutionalization continued apace, exacerbating their disconnect from popular support. The chapter concludes by considering how, in constitutional theory, the discourse of post-sovereignty becomes dominant yet highly ideological, given the concrete constitutional developments, a disconnect which is dialectically deconstructed to reveal a hollow authoritarianism.</Online Only>

The Reception of Structured Proportionality in Australian Constitutional Law

A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for its commitment to legalism and textualism. Against this background, one might think that the High Court would interpret the elements of structured proportionality so that they assume a highly distinctive form in Australian constitutional law. However, a close reading of recent implied freedom of political communication case law demonstrates that generally this is not the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from the case law of the Federal German Constitutional Court. However, once a broader comparative perspective is adopted, it becomes apparent that the High Court’s approach is not unusual, especially for courts that are new to applying structured proportionality. By adopting structured proportionality, the High Court may have aligned the implied freedom of political communication with a global model of constitutional rights enforcement. The Australian constitutional context may also be less distinctive than is sometimes supposed.

The Federative Republic of Brazil

This chapter looks at Brazilian judicial review. Judicial review in Brazil originated because it was borrowed from the U.S. Constitution. It emerged in amplified form in Brazil’s 1988 Constitution because, by 1988, the normative appeal of judicial review was widely appreciated all over the world. Moreover, the Hybrid Model of judicial review in Brazil, whereby the Supreme Federal Tribunal is both, at the apex of a diffuse system of judicial review, and is also a Constitutional Court, reflects widespread appreciation for the value of a system like the German Constitutional Court in a civil law jurisdiction. The power of such a court to issue rulings with erga omnes effect is especially important in civil law countries like Brazil, which lack systems of stare decisis. First, judicial review emerged in Brazil as the result of borrowing. Second, it emerged as a rights from wrongs reaction to abuses of power during Fascism and during the military dictatorship, which ruled Brazil for 1964 until 1984. Third, judicial review is necessary in Brazil for both federalism and separation of powers umpiring reasons. Fourth, judicial review in Brazil also emerged because the constitution-writing elite wanted to entrench its liberal and socialist values to forestall the emergence of yet another military government in the country. And, fifth, the Brazilian Constitution divides and allocates power among so many federal and state entities that the Supreme Federal Tribunal has the political space it needs to play a really big role in governing the country.

Das „Kooperationsverhältnis“ zwischen Bundesverfassungsgericht und Europäischem Gerichtshof nach dem PSPP-Urteil

Der Beitrag diskutiert die Konsequenzen des PSPP-Urteils für das Kooperationsverhältnis zwischen dem BVerfG und dem EuGH. Dabei wird für eine nüchternere Perspektive statt martialischer Zuspitzungen und gegen einseitige Schuldzuweisungen plädiert. Vielmehr sind wechselseitige Kooperation und Konfrontation in der netzwerkartigen Struktur der Gerichtsbeziehung angelegt. Deshalb markiert das Urteil zwar eine Krise, aber noch nicht das Ende des „Kooperationsverhältnisses“. Die Vorstellung, der Gerichtskonflikt lasse sich nur durch Dritte lösen, sei es in Form eines Vertragsverletzungsverfahrens, sei es durch eine spezielle Gerichtskammer für Kompetenzkonflikte, unterschätzt die fein ausbalancierte Funktionsweise des Gerichtsdialogs und birgt ein bedenkliches Eskalationspotenzial. Der Impuls, die Wiederherstellung der europäischen Rechtseinheit trotz grundlegendem Dissens rechtlich zu erzwingen, kann den Gerichtskonflikt auch eskalieren und eine Lösung zusätzlich erschweren. The article analyzes the consequences of the PSPP ruling for the cooperative relationship between the German Constitutional Court and the European Court of Justice. It argues for a sober perspective instead of martial exaggerations and against apportioning one-sided blame. Rather, reciprocal cooperation and confrontation are inherent in the network structure of the judicial relationship. Although the ruling creates a crisis, it does not yet mark the end of the “cooperative relationship”. The idea that the judicial conflict can only be resolved by third parties, whether in the form of infringement proceedings or by a Mixed Grand Chamber for the delimitation of EU competences, underestimates the delicately balanced functioning of the judicial dialogue and harbors a worrying potential for escalation. The impulse to legally enforce the restoration of European legal unity despite fundamental dissent may end up escalating the judicial conflict and making a solution even more difficult.