Solange III (or the Bundesverfassungsgericht’s‚ Europe Friendlyness) On the Decision of the German Federal Constitutional Court Over the Ratification of the Treaty of Lisbon
Rivista Italiana di Diritto Pubblico Comunitario, pp. 973-995, May 2009
Posted: 18 Sep 2009 Last revised: 10 Jan 2010
Date Written: September 17, 2009
Final version will be published in European Public Law Journal, 16/1,2010, p. 53-73 under the title "The German Constitutional Courts Friendliness towards European Law". Comenting the Sentence requires a good understanding of German language and German constitutional law, in order not misinterpret the decision of the BundesVerfassungsgericht. If carefully read, and taking into account both what the Court exactly decided and what the plaintiff's arguments were, it is clear that the sentence is a continuation of the previous "solange" jurisprudence and of the BVerfG's Maastricht decision of 1993. What is new is first the very strong link between democracy and sovereignty whereby what is at stake with the growth of EU competences is not so much Germany's sovereignty as an appropriate democratic accountability, and, second the indication that the BVerfG is the sole interpret - amongst German courts - of what constitutes Germany's constitutional identity. This constitutional identity is defined by the "eternity" clause of the German Basic Law. The BVerfG does not indicate what would happen if it were to find a provision of EU law in contradiction with its constitutional indentity. The only correct way to solve such an issue would be for the BVerfG to refer to the European Court of Justice for a preliminary ruling on the invalidity of such a provision, on the basis of article 4 EU (post-Lisbon version). The sentence does by no means exclude such a possibility.
Keywords: Lisbon treaty, German constitutional court, Principle of conferral, solange doctrine, reference for preliminary ruling
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