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Decision concerning the Maastricht Treaty of October 12, 1993

Published online by Cambridge University Press:  27 February 2017

Georg Ress
Georg Ress*
Affiliation:
Europa Institute, University of the Saarland, Saarbrücken, Germany
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Type
International Decisions
Information
American Journal of International Law , Volume 88 , Issue 3 , July 1994 , pp. 539 - 549
Copyright
Copyright © American Society of International Law 1994

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References

1 Decision of Oct. 12, 1993, BVerfG, Nos. 2 BvR 2134/92, 2159/92, reported in 1993 Europaische Grundrechte Zeitschrift (Eugrz) 429, 1993 Juristen-Zeitung 1100, and 1993 Neue Juristische Wochenschrift 3047, and translated in 33 ILM 388 (1994) [hereinafter Decision], The citations below refer to the EuGRZ. All translations of the decision are by the author.

2 Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 224) 1, 31 ILM 247 (1992).

3 Act of 28 December 1992 concerning the Treaty on European Union of 7 February 1992, Bundesgesetzblatt [BGB1.], Teil II 1251. Statutory approval was required under TEU Article R(1), as well as under Article 59(2) of the Basic Law, Grundgesetz [GG],

4 Act amending the Basic Law of 21 December 1992, 1992 BGB1. I 2086.

5 See TEU Art. R(1), (2).

6 Of June 2, 1992 (50.3% voted against the TEU).

7 The Act of 28 December 1992 concerning the Treaty on European Union of 7 February 1992 was passed in the Bundestag on December 2, 1992, by the impressive majority of 543 to 25. The consent of the Bundesrat—the representative body of the German Länder—was unanimous. See Decision at 431.

8 Manfred Brunner was chef du cabinet of the German Commissioner Manfred Bangemann. Like Bangemann, Brunner was active in the Free Democratic Party (FDP), and at one time he headed the organization in Bavaria. Commissioner Bangemann fired Brunner after he publicly criticized the TEU. Brunner recently left the FDP, founded his own party, and intends to run on a mainly anti–European Union platform in at least some of the many elections this year in Germany, notably in the state elections of Bavaria.

9 Brunner’s complaint had been based on the alleged violation of a myriad of constitutional norms. Whereas some of those allegations gave ample evidence of his legal imagination, they were nevertheless close to absurdity. For example, Brunner claimed a violation of Article 5 of the Basic Law (freedom of speech, expression, press, etc.) on the grounds that the TEU changes the conditions of communication in that henceforth European (political) organs must be influenced instead of German ones. Likewise, he viewed freedom of association in political parties (Art. 9 in conjunction with Art. 21) as jeopardized because TEU Article 138a supposedly orders parties to work toward a European identity.

10 Article 38 reads as follows:

(1) The deputies to the German Bundestag shall be elected in general, direct, free, equal and secret elections. They shall be representatives of the whole people, not bound by orders or instructions and subject only to their conscience.

(2) Everyone who has attained the age of eighteen years is entitled to vote; everyone who has attained full legal age shall be eligible for election.

(3) Details are subject to regulation by federal law.

GG Art. 38 (translation by the author).

11 Referring to speeches by the President of the European Commission, Jacques Delors, and Commissioner Bangemann according to which, even before enactment of the TEU, some 80% of the laws and regulations regarding economic law and some 50% of all German legislation were caused by Community law. See Decision at 434. This comes close to the truth.

12 TEU Article F(3) provides: “The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.”

13 Decision at 434.

14 The so-called Europe Article, No. 23, was incorporated into the Basic Law by the Act amending the Basic Law of 21 December 1992, supra note 4. Paragraph 1 provides:

In order to realize a united Europe, the Federal Republic of Germany will participate in the development of the European Union, which is bound by democratic, social and federal principies, the rule of law and the principle of subsidiarity, and which guarantees the protection of basic rights and freedoms on a level essentially comparable to that of the Basic Law. To that effect the federation may transfer sovereign rights by act of Parliament. Art. 79, paras. 2 and 3 apply both in regard to the founding of the European Union and in regard to changes in the underlying treaties and comparable provisions through which this Basic Law will be amended or which might make possible such amendments.

GG Art. 23(1) (translation by the author).

Article 79(2) of the Basic Law makes amendment of the Basic Law contingent on a two-thirds majority in both the Bundestag and the Bundesrat, and Article 79(3) proscribes any amendment of the Basic Law aimed at revising the principles set forth in its Articles 1 and 20, which are in essence those already mentioned in Article 23(1) (the principles of democracy, federalism, welfare, rule of law and protection of human rights, with the exception of the principle of subsidiarity).

15 Decision at 434.

16 E.g., economic and monetary union, education and training, culture, public health, consumer protection, trans-European networks (transport, telecommunications, energy infrastructures).

17 Decision at 434.

18 Later in the judgment the Court analyzed the status of the Union and came to the conclusion that the European Union is not a state and that the member states are still sovereign entities, because the Union is mainly an economic community (internal market, monetary union, etc.) and because the cooperation in the fields of justice and home affairs and the common foreign and security policy are structured intergovernmentally. Thus, the Court concluded that Germany is one of the “masters of the treaty,” which, having expressed their will for long-term (respectively unlimited) membership, could also revoke that intention. In Germany that passage of the decision was widely misinterpreted as stipulating Germany’s right to withdraw from the Union unilaterally. The Court’s use of the plural, however, demonstrates that no such blatantly unlawful holding was intended. The Court consequently made it clear that the question whether the Basic Law allows or precludes German membership in a European state did not arise under the given circumstances. Decision at 439.

19 Decision at 438.

20 Id.

21 Id. at 439.

22 See Helmut Steinberger & Eckart Klein, Der Verfassungsstaat als Glied einer europäischen Gemeinschaft, 50 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 17, 66 (1991), and my discussion at 172.

23 Decision at 439.

24 Id. at 440 (emphasis added).

25 For the text of Article F(3), see supra note 12. See Georg Ress, Die Europäische Union und die neue juristische Qualität der Beziehungen zu den Europdischen Gemeinschaflen, 1992 Juristische Schulung 987. ECT Article 235 reads as follows:

If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

26 Bengt Beutler, Roland Bieber, Jörn Pipkorn & Jochen Streil, Die Europäische Union—Rechtsordnung und Politik 74 (4th ed. 1993). However, there are also indications of profound confusion as to the purpose of Article F(3). The Court cites statements of German government officials in the proceedings and members of the German Bundestag in which the provision is qualified as “a programmatic principle” without specifying the contents. See Decision at 441.

27 Decision at 440.

28 Id. at 443.

29 Id.

30 Id. at 445.

31 Id. Whether acts can be found to be ultra vires on the grounds of noncompliance with this principle of subsidiarity and whether this issue is under the control of the courts of the member states are crucial questions. An affirmative answer would bring complete legal instability into the relationship between the Union and its member states.

32 Rupert Scholz, Europäische Union und deutscher Bundesstaat, 1993 Neue Zeitschrift für Verwaltungsrecht 817, 819.

33 See Christian Tomuschat, Die Europäische Union unter Aufsicht des Bundesverfassungsgerichts, 1993 EuGRZ 489, 492–93.

34 See text following note 22 supra; Decision at 438–39, 440, 445.

35 See ECT Arts. 164 et seq. For a discussion of this position, see Steinberger & Klein, supra note 22, at 66.

36 See Georg Ress, Die Bedeutung der Rechtsvergleichung fur das Recht intemationaler Organisationen, 36 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 420 (1976); idem, Wechselwirkungen zwischen Verfassung urid Völkerrecht bei der Auslegung völkerrechtlicher Verträge, Berichte der Deutschen Gesellschaft für Völkerrecht, No. 23, 1982, at 7.

37 Decision at 429, 438.

38 Id. at 437.

39 Id. at 434.

40 Id. at 438: “as is currently the case.” At present, it is obviously not concern about democratic, i.e., parliamentary, legitimization but concern about the influence of the member states as such (here: Germany) on the decision-making process of the Union. Member states see their position as being better maintained by the current strong position of the Council and the Commission’s monopoly of legislative initiative than by the diffuse participation of elected representatives of their people in the European Parliament. The smaller a member state is, the stronger the weight of its argument. The Court argued that,

notwithstanding the necessity of democratic control by the governments, the enactment of European legal norms may rest in the hands of an organ composed of representatives of the governments of the member states, i.e., in a governmentally determined organ, to a larger degree than could be constitutionally tolerated within the national sphere.

See id.

41 Id. at 437–38.

42 Id.; see also Tomuschat, supra note 33, at 494, who is slightly more pessimistic and sees the Union being maneuvered into an “insoluble situation.”

43 Georg Ress, Über die Notwendigkeit der parlamentarischen Legitimierung der Rechtsetzung der Europäischen Gemeinschaften, in Verfassungsrecht und Völkerrecht—Gedächtnisschrift für Wilhelm Karl Geck 625, 681–84 (Wilfried Fiedler & Georg Ress eds., 1989).

44 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331.