European integration with responsibility in the CETA case
On 2 March 2021, the German Constitutional Court (GCC) rejected an application by the Left-wing parliamentary group DIE LINKE (‘The Left’) as inadmissible. The Left group had filed a complaint against a statement made by the Bundestag (the German Parliament) on 22 September 2016. It argued that the Parliament had failed to give constitutive consent to CETA’s provisional application through a formal mandate law. CETA stands for Comprehensive Economic and Trade Agreement and is a free trade agreement between the EU and Canada that contains numerous trade and customs facilitations. As a new-generation trade agreement, it contains many rules for reducing non-tariff trade barriers. The Left rejects such agreements because they will allegedly “drag down rules on environmental, consumer and worker protection in the interests of corporate interests.” The Left Party understands a “formal mandate law,” or formal consent, to be a formal parliamentary law that prescribes to the federal government how it must behave in such trade negotiations and in the vote in the Council of the EU. In its CETA ruling, the GCC has now concretised the German Parliament’s so-called responsibility for European integration once again.
Mandate law instead of statement?
In its opinion of 22 September 2016, the Bundestag had called on the German Federal Government to advance CETA as a mixed agreement between the EU, the Member States and Canada and to agree on exceptions to a provisional application, especially in investment protection. The Bundestag had also instructed the German government to inform itself early and comprehensively about further developments connected with the free trade agreement. However, the Left group believed the Parliament had failed to fulfil sufficiently its responsibility for European integration. The meaning of this responsibility is outlined in the following section. Instead, according to the Left group, the Bundestag should have adopted a formal “mandate law“ to allow the German representative in the Council of the European Union to approve the provisional application of CETA and give it concrete guidelines in this regard. The Left group believed that the Bundestag’s responsibility for European integration had been condensed into a concrete duty to ensure that ultra vires actions and violations of constitutional identity did not take place. In the opinion of the Left Party, the Bundestag is obliged to issue a formal consent, i.e. a legal authorization or instruction to the German representative in the Council of the European Union, which can legitimize the use of sovereign rights by the European Union. This obligation should follow from Article 23 Grundgesetz (‘GG’, German Basic Law). But the Left group’s complaint remained vague about how a mandate law would serve to “constitutively limit” and “democratically pre-structure” the CETA agreement.
In its CETA ruling, the GCC held that the Left group could not claim a possible violation of its rights or those of the Bundestag itself. The GCC, however, did not rule on the provisional application of CETA, which had already been in place for more than three years by the time of its judgment. It also remained silent about the constitutionality of the conclusion of CETA itself. In the reasons for its ruling, the Second Senate of the GCC further sharpened the responsibility for European integration. The German Constitution does not recognise any mandate law that could legitimise a claim of sovereign rights by the European Union. Should the European Union act ultra vires or violate the constitutional identity through other measures, even a mandate law would not remedy the constitutional violation. In other words, if the EU, in exercising its sovereign powers, exceeds the competences granted to it by treaty or affects the constitutional identity of the Basic Law, then it acts unconstitutionally in either case. In no case, however, can the Bundestag legitimize such action through formal consent. Rather, the German Parliament may not authorize the Federal Government to consent to an ultra vires act or a violation of identity at all. In the CETA ruling, the GCC elaborated on the actions to which the Bundestag is instead obliged.
A look at the GCC’s case law on the responsibility for European integration shows that the Left Party’s motion had little chance of success from the outset. In several leading rulings, the GCC first developed the constitutional bodies’ responsibility for European integration argumentatively and then derived concrete obligations to act from this.
Integration with responsibility
The GCC first developed and explained the concept of responsibility for integration in its Lisbon ruling. According to this, it is the German constitutional organs’ special responsibility to comply with the domestic requirements of Article 23(1) GG within the framework of European integration. Pursuant to Article 23(1) sentence 2 GG, the Federal Republic of Germany may transfer sovereign rights to the European Union by statute. It follows that competences which have not been transferred may not be exercised by the European Union. Article 23(1) sentence 3 states that the so-called eternity clause of Article 79(3) GG applies to amendments to the Union Treaties. According to Article 79(3), the democratic principle is in turn unalterably protected, which ensures that there may be no exercise of power without democratic feedback. This concept applies both at the time of the transfer of sovereignty and later when the Union institutions exercise sovereignty. Every individual can claim these constitutional duties through the subjective right of Article 38(1) sentence 1 GG. Corresponding to the responsibility for integration are the constitutional reservations of control that the GCC has developed: the preventive control of integration laws in the Maastricht judgment, the Solange reservation in the Solange I und II judgments, the ultra vires control in the PSPP judgment, the identity control in the European arrest warrant II judgment and, more recently, the formal transfer control.
The two most important integration controls here are identity control and ultra vires control. With the identity control, the GCC examines whether the core area of the Basic Law, which is absolutely protected in Article 79 (3) GG, has been violated by measures taken by European bodies. According to the GCC, this includes human dignity, decisions on substantive and formal criminal law, the disposition of the monopoly on the use of force by the police internally and militarily externally, basic fiscal decisions on public revenues and expenditures, the welfare state organization of living conditions, and culturally particularly significant decisions, for example, in family law, the school and education system, or on dealings with religious communities (Lisbon judgment, para. 252). By means of the ultra vires review, the GCC examines whether a measure of the European Union is within the competences transferred to the EU by Germany. The mirror image at the Union level is the principle of conferral under Article 5(1) and (2) TEU.
Positioning in the sovereignty of the people
In the OMT ruling from 2016, the GCC also derived from the responsibility for integration the duty of the German state organs to take active action against violations of constitutional identity or ultra vires actions. The reason behind this is the principle of democracy, or more specifically, the sovereignty of the people according to Article 20(2) GG. The principle of democracy, which is fixed and unalterable (Article 23(1) sentence 3 in conjunction with Article 79(3) GG), prohibits a “substantial erosion of the power of the German Bundestag to shape the constitution“ (para. 115). The sovereignty of the people necessarily presupposes “that the Union law applied in Germany also has a sufficient degree of democratic legitimacy “ (para. 115). From the principle of popular sovereignty follows every citizen’s claim “to be exposed only to a public power which he or she can legitimise and influence“ (paras. 123 and 127).
As a consequence, German constitutional bodies may not participate in legal acts of the EU that constitute ultra vires acts, but must oppose them and use all means at their disposal to work towards compliance with the integration programme of the law that transferred sovereign rights to the European Union. For the Federal Government, the GCC already enumerated in the OMT ruling measures that could be necessary to ensure compliance with the integration programme. These include an action before the ECJ objecting to the ultra vires measures vis-à-vis the acting and the controlling bodies of the European Union, exercising veto rights in the Council and European Council, or bringing forward Treaty amendments.
A specific instruction for action
In the more recent PSPP ruling, the GCC, for the first time, declared both a referral decision of the ECJ and the decision of the Council of the European System of Central Banks (ESCB) to implement the Public Sector Asset Purchase Programme (‘PSPP’, a programme for the purchase of public sector securities) to be ultra vires. According to the ruling, the Federal Government and the Bundestag are obligated, by their responsibility for integration, to oppose the previous handling of the PSPP and to work actively towards compliance with the integration programme. Thus, the GCC derived the specific obligation for the Federal Government and the Bundestag to work towards a proportionality test to be fulfilled by the European Central Bank (ECB). In the PSPP ruling, the GCC thus, for the first time, elaborated a case-by-case measure that the Bundestag must undertake to achieve the repeal of measures not covered by the integration programme.
The German Bundestag has fulfilled its responsibility for integration in the PSPP case to the extent that it has requested the ECB to provide the Federal Government and the Bundestag with documentation of the ECB’s consideration and assessment of the PSPP. Following an application for an enforcement order based on these documents, there is now a case pending before the GCC on whether the Bundestag and the Federal Government have thus adequately fulfilled their responsibility for integration.
The PSPP ruling thus also shows another, lesser-discussed aspect of the responsibility for integration: this constitutional obligation can also be interpreted in a European law-friendly manner and thus does not contradict the Union legal order. The GCC did not declare Union action invalid in Germany and allowed for a cooperative solution even in the ultra vires case. The constitutional obligation to exercise responsibility for integration does not contradict the Union legal order but is a necessary complement in the European constitutional alliance.
While the complainants in the PSPP proceedings wanted to ensure that the German constitutional bodies no longer participate in the bond-buying programme, the Left Party demanded that Parliament play a more active role in European integration. The two rulings have in common the crystallisation of further concrete duties to act from the abstract notion of responsibility for integration.
Other specific obligations
In the CETA ruling, the GCC once again concretised some examples of individual measures that can follow from the Bundestag’s responsibility for integration. A mandate law as envisaged by the Left Party is not one of them.
The GCC emphasises the wide scope of constitutional bodies for assessment, evaluation, and design in exercising their responsibility for integration. Here, too, the GCC’s European law-friendly standard is evident: a violation of the responsibility for integration only occurs “if there is a lack of any protective measures, if the regulations and measures taken are obviously unsuitable or completely inadequate, or if they fall considerably short of the objective of protection” (para. 73).
In its reasons for the CETA judgment, the GCC gives the Parliament a variety of options for action in an ultra vires case. The Bundestag could subsequently legitimise ultra vires acts by amending German primary law and transferring further sovereign rights to the EU in this respect within the limits of Article 79(3) GG (para. 78). Should such a subsequent legitimisation not be possible or not be desired, the Bundestag would have to limit the effects of the ultra vires act and repealing it (para. 78). Within the framework of its right of question, debate, and resolution, the Bundestag could work towards an action for annulment before the ECJ under Article 263(1) TFEU and demand that the measure in question be challenged vis-à-vis the acting and controlling EU bodies. It could also adjust the German voting behaviour in the EU decision-making bodies, including the exercise of veto rights. Furthermore, the Bundestag could promote initiatives to amend the Treaty (Articles 48(2) and 50 TEU) and issue instructions to subordinate national bodies not to apply the measure in question. Depending on the individual case, the Bundestag could also resort to the subsidiarity complaint (Article 23 para. 1a GG in conjunction with. Article 12(b) TEU and Article 8 Subsidiarity Protocol), the right of enquiry (Article 44 GG), or the vote of no confidence (Article 67 GG) (para. 79). Finally, the GCC also emphasised the Parliament’s essential function as the representative of the whole people. From this representative function, the GCC derived the necessity of a plenary debate in the Bundestag in the case where the GCC has established that an EU act is ultra vires or violates the constitutional identity (para. 80).
The two-track democratic legitimacy of the European Union
Behind the concept of responsibility for integration thus lies national democratic legitimisation and control in the progressive process of European integration. Article 23(1) GG contains a double obligation: on the one hand, the realisation of a united Europe, which, on the other hand, must be committed to democratic, constitutional, social and federal principles and the principle of subsidiarity. As long as the European Union also depends on the democratic legitimacy of the Member States’ parliaments, the latter must be substantially involved in the European integration process (cf. Article 12 TEU). In other words, the constitutional bodies, and especially the Bundestag, must not be disempowered. These bodies have the right to exercise responsibility for integration and must not disempower themselves.
The principle of “two-track democratic legitimacy“ as a reflection of the European Union’s responsibility for integration is also expressed in Union law itself, in particular in Articles 10(1), 14(2), and 12 TEU. According to Article 10(1) TEU, the functioning of the European Union is based on representative democracy. It follows from Article 14(2) TEU that the European Parliament is composed of representatives of the Union’s citizens on a degressively proportional basis. The principle of the degressively proportional representative democracy of the European Union thus follows from these norms. Article 12 TEU explicitly states that the national parliaments actively contribute to the functioning of the European Union. From this follows the two-track democratic legitimacy of the European Union. As long as national parliaments are the central organs of the Member States’ parliamentary democracy, they must have a substantial influence on the acts of the European Union.
The last word is still to come
Concerning CETA, the Bundestag has not, in any case, violated its responsibility for integration. As the GCC points out, the Bundestag dealt with the free trade agreement intensively and over a long period in numerous plenary sessions, committee meetings, and hearings of experts and exchanges with competent actors in Canada and the European Union before it adopted the opinion.
With this ruling, the GCC has not yet spoken the last word on the CETA free trade agreement. The substantive review is still to come. Only then will it be clear whether the GCC will clear the way for the Bundestag to fulfil its responsibility for integration by ratifying the CETA agreement. In the meantime, the Bundestag does not need to pass another law. This much has been confirmed by the ruling of 2 March 2021.
Thank you. Very interesting as usual. As far as I know nobody says that the CETA is not a mixed agreement.
I continue to think that the GCC should avoid go into so many details (concretising) in a preventive manner. With the PSPP ruling we have seen how it had trapped itself by fixing the criteria for ultra vires in Gauweiler and trying desperately to demonstrate that the CJEU had ruled ultra vires.
Those criteria, as Judge Huber has explained in an interview last year, are the same as the GCC applies when reviewing rulings of the German Federal Supreme Courts; but this is where the rub comes in: in the German Constitutional order, there is no doubt that the GCC is hierarchically above the Federal Supreme Courts; but it is not in such a position with respect to the CGEU, neither in the EU legal order, nor in the German legal order. If all member states’ supreme and constitutional court were to adopt the same line, the uniformity of EU law would be jeopardized and judicial dialogue would end up in cacophony.