The German Tale of Two Courts - EU Law made in Karlsruhe in favour of proportionality

Wesemann, Anne (2020). The German Tale of Two Courts - EU Law made in Karlsruhe in favour of proportionality. In: Society of Legal Scholars Annual Virtual Conference, 01/09/20-04/09/20, Exeter University, online.


On the 5th May German's Federal Constitutional Court (FCC) declared a case decided by the Court of Justice of the European Union (CJEU) in December 2018 to have been made ultra vires and the seemingly calmed relationship between the two courts was thrown into wild waters again.
The FCC has a proud tradition of CJEU critical judgments and has often been admired and cursed as the gatekeeper of not just German constitutional principles. It has never gone so far as to declare a decision of the CJEU to be ultra vires, now tearing at the constitutional fabric of EU legal framework.
What is it that leads the FCC to make this particular decision, but also to not shy away from confrontation with the arguably superior court? This paper will explore structure and functioning of both courts before elaborating on the history of FCC decision making, giving due regard to the Solange cases. The recent decision(s) (2 BvR 859/15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15) will be discussed with particular reference to the constitutional impact the ultra vires claim can have, not only on the relationship of the courts, but the EU constitution as a whole and Germany’s constitution as linked to that. The wider discourse regarding proportionality and how the FCC and CJEU application of this principle agree and differ will form part of this analysis.

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