OPENNESS OF THE GERMAN CONSTITUTIONAL SYSTEM TO EUROPEAN UNITY (Otwarcie systemu konstytucyjnego Niemiec na sprawy jednosci Europy)
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The participation of the Federal Republic of Germany in the European integration process is reflected, above all, in the European Community/European Union membership. The constitutional authorization to FRG's access to the Community establishing treaties was given by Article 24 paragraph 1 of the Basic Law which provided for the transfer, by means of a statute, of the sovereign powers to inter-state institutions. The present conditions of Germany's membership of the European Union are specified more precisely in Article 23 paragraph 1 of the Basic Law which contains the requirements determining the system of the organization, which is considered as the imposition of 'structural guarantees' on the Union subject to supervison by Germany as its member state. The Federal Constitutional Court (FCC) held that the provisions of the Preamble and Article 23(1) of the Basic Law establish the principle of openness of the German legal order to European law and impose an obligation on German constitutional organs to contribute to accomplishment of European unification. This constitutional delegation is not, however, unrestricted and is subject to authority limits, applied particularly to lawmaking activity of the Communities (European Union). The principle of conferred powers prevents the acts from having ultra vires effect in the FRG's legal system. Another limitation is the protection of the German constitutional identity from violation, formulated on the basis of Article 79 paragraph 3 in conjunction with Articles 1 and 20 of the Basic Law, from which it follows that the EU is obliged to respect the fundamental human rights, the principle of democracy and federal structure of the state. It should also be pointed out that in the light of the position taken by the FCC, the integration mandate given by the Basic Law does not allow the authorities of the German state to accede to a federal state and renounce German sovereignty.
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