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Constitutional Reservations against Maastricht Dismissed (November 3, 1993)

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The court reserves the right to declare constitutional complaints against the legislation of the European Community admissible, if such complaints assert that the legal basis of the legislation is not covered by the law that sanctioned the treaty. With that, the court modified its earlier opinion, according to which EC legislation could not be subject to review by German courts. The court affirmed that, with regard to the protection of fundamental rights, the BVerfG and the European Court of Justice (ECJ) complement each other in the sense of a “cooperative relationship.” This means that the ECJ guarantees the protection of fundamental rights in each individual case for the entire territory of the European Community, whereas the BVerfG can limit itself to a more general guarantee of inalienable fundamental rights.

The court emphasized the decisive role that the member states, which retain their sovereignty, play in an association of states. The member states remain “masters of treaties” [Herren der Verträge] and as such are bound to the Union treaty, which was concluded for an indefinite period of time. Ultimately, however, they can revoke their affiliation through a “contrary act.” The court permits decisions based on majority voting within the Community. The principle of “Community loyalty” in the sense of mutual respect for the constitutional principles and elemental interests of the member states applies.

At the same time, the court handed down important statements on the constitutionality of future developments in the European Union, statements that agree with the position presented by the Federal Government during the proceedings and that are essentially already valid as principles of Community law:

– The necessity of transparency in the decision-making processes of the organs that exercise authority and in the respective political aims being pursued.

– The principle of conferral [begrenzte Einzelermächtigung]. This means that the Community is expressly prohibited from assuming new competencies by citing treaty objectives without obtaining a formal amendment to the treaty (no authority to extend its competencies [keine Kompetenz-Kompetenz]). Art. F, Sec. 3 of the TEU (Union’s provision of means) is to be interpreted merely as a programmatic statement.

– New tasks can be assigned only through an amendment to the treaty, that is, a sufficiently determined stipulation of other transfers of sovereignty and of the intended integrative measures through ratifying laws.

– An emphasis on the subsidiarity principle as a means of limiting the exercise of Community competencies.

– Heeding the principle of commensurability with respect to the level of regulation of Community measures.

– The non-applicability of Community acts if competencies stated in the TEU are exceeded. Related procedural questions were not examined by the court.

The court saw no reason under the present circumstances to consider the question of whether the Basic Law allows for or prohibits German membership in a European state. Its remarks on this issue, however, do show that it considers deeper integration possible – in the presence of certain “extra-legal conditions” that could develop over time within the institutional framework of the European Union.

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