Abstract

The German Constitution allows to limit the sovereign rights and to entrust the power to the EU, provided that the principles of German constitutional law and the principle of subsidiarity are respected. The German legal system was opened to the European law by creating the possibility of transferring some sovereign rights, but at the same time, the scope of this openness became the subject of clarification by the Federal Constitutional Court. Indeed, the FCC is very active as far as so-called European affairs are concerned. Moreover, the decisions taken by FCC are carefully analyzed by other EU Member States.

The FCC has developed three models of checking the compliance of EU acts with the German Basic Law: the control of compliance with fundamental rights (Grundrechtskontrolle), the ultra vires control (Ultra-vires Kontrolle) and the control of respect for constitutional identity (Identitätskontrolle). The EU law obviously takes precedence over national acts, as the constitution-maker provided such a possibility, and the Federal Republic authorities used this option. However, the constitution-maker provided for the primacy of the constitutional law, and no state body (and even more so, the EU, which is a derivative entity established by the Member States) has neither substantive nor formal legal authority to this primacy. Even if we use the rule of the so-called friendly interpretation, in conflict situations, the primacy should always be given to provisions of constitutional rank, unless the sovereign changes the constitutional order. 

Without going deeper into the specificity of legal traditions of individual member states, but paying attention to different approach to the hierarchy of sources of law, one can argue that individual European constitutions, like the German one, share the fundamental idea that states are still sovereign, have the right of the last words on the most important issues and only the exercise of certain rights can be transferred from the national law to the EU level. The search for a theoretical basis of reconciliation of various approaches, regulating cooperation and defining the rules of convergence between the Luxembourg Tribunal and national constitutional courts resulted in creation of the concept of legal pluralism. This model is sometimes assessed as extremely attractive and theoretically coherent, but at the same time it does not sufficiently take into account the situation of disturbances in the European legal order in the form of intersystem constitutional conflicts. M. Kumm deems justified deviations from the principle of supremacy of EU law in cases of conflict with a particular type of constitutional norm regulating issues belonging to the fundamental system solutions in a given country.

Accepting the position that in some cases the member states may demand protection of their national identity to justify derogation from the principle of the primacy of EU law, according to A. Kustra, would lead to a revolutionary change in the understanding of the principle of supremacy and the CJEU to initiate a real,and not only apparent dialogue with Member States’ constitutional courts. The doctrine points out that it is the Member States (and within them parliaments and constitutional courts) that will have to define what elements constitute their „constitutional identity”. However, this concept may become creative and become an important determinant of the definition of the relationship between the EU and the Member States.

As emphasized by the advocate general of the CJEU, M.P. Maduro (although supporter of the concept of constitutional pluralism), a member state in some cases may demand the protection of its national identity to practice a deviation from the application of fundamental freedoms of movement, and national identity undoubtedly also includes constitutional identity. A Member State has a legitimate right to identify and determine the legitimate interest, within certain limits, thereby leading to the establishment of restricting border for a given Union freedom. A. Kotowski points out that the thesis supporters of the prevalance of the monocentric
or multicentric nature of the legal system are not in favour of total exclusion of the opposition’s argumentation. All modern legal systems allow some degree of multicentrism, while maintaining the monocentric hierarchical structure of the legal system as the basic structure. From this perspective, legal systems are inherently monocentric, but multicentric in some, limited aspects.