The Ultimate Decision on Ultra-Vires Acts

Abstract

The book deals with the divergent positions of the German Constitutional Court (Bundesverfassungsgericht, BVerfG) in the Maastricht-decision (a.k.a. the Brunner-case) and the European Court of Justice (ECJ) in the Foto-Frost-decision concerning the question of which court should have the final word on ultra-vires acts of European institutions and organs. In its 1993 Maastricht decision, the BVerfG claims the competence to see to it that legal acts of European institutions and organs remain within the boundaries of the public powers attributed to these institutions or whether they "break out" of those limits. According to the BVerfG, these "legal acts out-breaking" (ausbrechende Rechtsakte) are not legally binding in Germany. On the other hand, it has been the constant stance of ECJ jurisprudence since the 1987 Foto-Frost decision that it is up to the ECJ alone to decide whether legal acts of European institutions and organizations are covered by any legal competence. The approach adopted is a comparative one, which examines the other Member States' practices with respect to parallels to the German Maastricht-decision and similar conflicts between courts in US constitutional history.

The study is divided into four parts: the first part is the theory part, and the second part is about the ultra-vires problem from the perspective of EC-law and the 15 Member States. The third part is about the United States experience of conflicts between courts in the 19th century and beyond. The fourth part brings together the results and insights gained in the previous three parts.

The study concludes with the proposition that - considering the constitutional framework of the respective candidates for enlarged EU membership, what with constitutional courts and a strong sense of sovereignty - the question of the final word on competence conflicts between the EU and the Member States is bound to stay on the agenda.