In 1995, the German legislature introduced the rule that a woman who terminates her pregnancy in the first trimester, which is illegal, would not be punished if she had previously undergone a legally prescribed counseling session. The counseling session, while oriented toward the protection of unborn life, is also open-ended, respectful of the decision-making right and duty of the pregnant woman. At the request of the pope, the German bishops instructed the existing counseling centers of the Catholic welfare organizations not to issue any written certificates of such counseling, as such certificates could ultimately be used to evade punishment. In order to continue to be able to offer counseling, Catholics, among them Ernst-Wolfgang Böckenförde, founded the association Donum Vitae (Gift of Life), which continues to issue certificates when requested. For the German bishops, the association, founded by Catholics for Catholics and non-Catholics alike, is external to the church. But what precisely is Donum Vitae? What does it stand for? Why are assessments of the association divided until this day? The essay examines these questions theologically and legally.

Quantitative approaches are gaining popularity in German legal research. The analysis of large corpora of legal text may be supported by text mining methods. In this study, we employ topic modeling—which aims at retrieving the “topics” of a corpus—to identify words related to certain areas of law present in the case law of the German Federal Constitutional Court (FCC). This information is then evaluated by legal experts and used to show significant content-related differences between the two most frequent types of proceedings before the FCC. Technical and somewhat unstable areas of law, such as tax law, social law, and civil service law, are significantly overrepresented in referrals for judicial review, whereas areas of law characterized by well-developed case law and judicial doctrine appear substantially more often in constitutional complaints. This insight may come as a surprise due to the fact that the Court’s material scope of review is identical in both types of proceedings. Our considerations do not, however, seem to apply to private law. Though we recognize the methodological and epistemological concerns regarding the heuristic nature of topic modeling, this study exemplifies its productive use in complementing, rather than replacing, more traditional techniques of analysis in legal studies.

The Federal Constitutional Court (FCC) in Germany has issued a landmark ruling with regard to climate change. It opens its jurisprudence for a new dimension of human rights: The intertemporal guarantee of freedom. It argues that the legislature has violated fundamental rights by failing to take sufficient precautionary measures today for the time after 2030. The emissions allowed in the Federal Climate Change Act until 2030 will nearly exhaust Germany’s remaining CO2 budget. After 2030, drastic legislative measures, which curtail nearly all activities that emit CO2, might be necessary. If emission reductions are delayed until 2030, the costs of climate protection will increase for future generations, and with it the risk that emission reductions will only be possible at the price of serious losses of freedom. Therefore, the legislature needs to act now and take the time after 2030 into consideration. The order might eventually influence climate change litigation in other areas of the world. The article will demonstrate the main arguments of the FCC order. The combat of climate change is an international task, which cannot be solved by Germany alone. The FCC takes this fact to some extent into account. It argues for international cooperation to combat climate change. Unfortunately, it does not fully evolve a jurisprudence which takes the core principle of common but differentiated responsibility (CBDR) seriously and addresses the questions of equity. The CBDR principle is one of the core principles which should solve the North-South divide and which should bring together the efforts of rich as well as poor countries to combat climate change. It is enshrined in the Paris Agreement. The FCC engages with this principle on the surface but misses the opportunity to truly and deeply engage.

The German Federal Constitutional Court’s ruling of May 5, 2020 on the ECB’s Public Sector Purchase Programme (PSPP) stated, for the first time ever, that some decisions by European institutions are not covered by the competence allocations of the European Treaties and cannot therefore take effect in Germany. This article argues that the judgment came as no surprise, as it is consistent with the principle of conferral of powers. According to this principle the EU and its institutions can only act within the limits of their competences. The German Basic Law prohibits any transfer of sovereign rights whose exercise would confer sua sponte additional competences to the supranational level. Against this background, the Federal Constitutional Court judgment does not seek to limit the ECB’s scope for appraisal and evaluation in the exercise of its monetary policy mandate. It focuses rather on the conditions which legitimize the ECB’s leeway. The issue in this case is not the applicability of the proportionality principle as a criterion governing the delimitation of powers, but the different reference points for the assessment of proportionality. In this regard the CJEU had failed to discuss whether monetary policy and the effects on economic policy are proportionate by themselves. Hence, in constitutional terms, the CJEU’s interpretation was found to be “arbitrary”, since the German Constitutional Court defined arbitrariness as jurisprudence that “in a reasonable reading … [appears] unintelligible and clearly untenable.” In other words, it is “simply not comprehensible.” Despite the harsh words of the German Constitutional Court, the authors argue that the judgement in the end can help to create a European legal culture that will strengthen the European Union in the long term if, in future, the CJEU engages more constructively with criticisms from Member State courts.

European constitutional thinking is still alive and is being shaped by the European Court of Justice into a value constitutionalism. Not only the Treaties, but also constitutional principles derived from EU law, are the common standard of review. Autonomy and constitutionality merge. In the light of this situation the Federal Constitutional Court’s PPSP-judgment with its insistence on limitations of competences and on democratic self-determination appears outdated. However, for the time being, Member States agreed to cooperate in a treaty based political union and do not have a consensus on a “good order” in organized Europe. The Court should abstain from the temptation to operate with values because presumably it would not be able to achieve the substantiation and the creation of a value hierarchy with the necessary acceptance.

The commentary, especially from abroad, on the Federal Constitutional Court’s judgment concerning the bond-buying programme undertaken by the European Central Bank (ECB) conveys the impression that something unimaginable has occurred. The German court has refused to follow the ruling of the Court of Justice of the European Union (CJEU), thereby setting “a bomb under the EU legal order.”1 Yet there is nothing new about the risk of conflict between the two courts. It came about when the Court of Justice of the European Union implicitly presumed, in 1963,2 and explicitly declared, in 1964,3 that European law takes precedence over domestic law, even over domestic constitutional law. This view was by no means without alternative, given that the Treaties of Rome do not address the precedence of Community law. The Member States involved in the dispute denied having agreed to any such precedence in the Treaties. Even the CJEU’s Advocate General was unable to find any basis in the Treaties for the precedence of European law.4 The CJEU derived the precedence of European law from the purpose of the European Economic Community.5 It argued that there could be no common market if each Member State applied and interpreted European law however it saw fit.

The Federal Constitutional Court’s ultra-vires case law—especially its most recent iterations—has more than its fair share of bad parts. It went from non-existence to global prominence in an alarmingly short period of time. Fortunately, the doctrine contains some extraordinarily good parts. Within the case law, there are three beautiful, elegant, and highly expressive elements that are buried under a massive tower of good intentions and hard luck: First, the principle of distinction between the two concepts of responsibility and accountability, second, the ban on transferring blanket empowerments, and third, the idea of a “program of integration” as a good medium for expressing vague ideas. In combination, these elements constitute a constitutional mechanism that does not play hell with European law, but truly complements any union based on multi-level cooperation. Focusing on the good parts—and avoiding some bad parts—might help prospective ultra-vires reviews to steer clear of wreaking havoc. The subset of good parts can serve to shift the constitutional case law towards reliability, readability, robustness, foreseeability, and, if nothing else, explicability.

In this paper, I argue that the conflict between the German Federal Constitutional Court and the Court of Justice of the European Union is the story of a clash foretold, if one takes seriously constitutional courts as institutions designed to be “dogs that bite.” The German Court consistently developed a doctrinal tool to guide its role as guardian of the national constitutional order and the democratic principle, and enforced it when the constitutional control of monetary policy measures so required. I analyze the PSPP ruling, focusing on where the Court concluded that the lack of a satisfactory statement of reasons by the European Central Bank prevented it from reviewing the proportionality of the program. I argue that the Court, after conducting a substantive assessment, applied a weak remedy, thereby deferring the last word on the constitutionality of the PSPP to the political branches. In doing so, the Court opens space for the political assessment of a controversial monetary policy, enhancing the politicization of the Economic and Monetary Union, and provides a doctrinal toolbox for national constitutional courts that face competence creep of EU law in their jurisdictions. I conclude that, ultimately, the main merit of constitutional courts’ interventions in the EU integration is that they are in a privileged position to allow for the politicization of technocratic processes.

The First Senate of the German Federal Constitutional Court (FCC) has recently introduced the express promise that where EU fundamental rights take precedence over German fundamental rights, the Court itself could directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. There are, however, differences between the Basic Law as the relevant standard of review and other standards of review that are dangerous to ignore. The constitutional status of the FCC’s jurisdiction depends crucially on whether the Court relies on the constitution or on EU fundamental rights. If the constitutional status of the novel jurisdiction covered any binding-effect, and that is a big if, the FCC still would not safeguard the unity and coherence of Union law. Leaving aside the fact that the First Senate is confined to reversing and remanding (unable to enforce anything directly), no beneficial effect on legal certainty grows apparent. Any binding-effect of the novel jurisdiction only provides for consistency without finality. And to venture further into the question: Even if anyone welcomed this novel kind of consistency without finality (virtually “provisional consistency”), this oddish consistency would still be a localized consistency, i.e. in German courts only.

The Right to Be Forgotten II crystallizes one lesson from Europe’s rights revolution: persons should be able to call on some kind of right to protect their important interests whenever those interests are threatened under the law. Which rights instrument should be deployed, and by what court, become secondary concerns. The decision doubtless involves some self-aggrandizement by the German Federal Constitutional Court (GFCC), which asserts for itself a new role in protecting European fundamental rights, but it is no criticism of the Right to Be Forgotten II to say that it advances the GFCC’s role in European governance, so long as the decision also makes sense in the context of the European and German law. I argue that it does, for a specific reason. The Right to Be Forgotten II represents a sensible approach to managing the complex pluralism of the legal environment in which Germany and other EU member states find themselves.

The Federal Constitutional Court has decided that the prohibition to strike for career civil servants, as it has traditionally been part of the German legal order, is in compliance with the German Constitution. The Court thereby put a (provisional) end to a long-lasting debate on how to solve the tension between the fundamental freedom to form associations under Article 9(3) of the Basic Law, which arguably encompasses a right to strike, and Article 33(5) of the Basic Law, which protects the traditional principles of the career civil servants, which arguably encompasses the prohibition to strike. Through recognizing that the ban on strike action by career civil servants is not only allowed but required under the German Constitution, the Constitutional Court navigates the German legal order on a potential collision course with the European Convention on Human Rights and the European Court of Human Rights. In this context, the Constitutional Court on the one hand reaffirms the openness of the German constitutional order towards international law in general and human rights and the European Convention on Human Rights in particular. On the other hand, the Court somehow marginalizes the role of the European Court of Human Rights and threatens to not follow the Court should it hold that the European Convention on Human Rights demands a right to strike also for career civil servants.