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OPENNESS OF THE GERMAN CONSTITUTIONAL SYSTEM TO EUROPEAN UNITY (Otwarcie systemu konstytucyjnego Niemiec na sprawy jednosci Europy)

100%

Wojtowicz K.

Przegląd Sejmowy

2009

issue 6(95)

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.

RESPECT FOR CONSTITUTIONAL IDENTITY OF THE MEMBER STATES OF THE EUROPEAN UNION (Poszanowanie tozsamosci konstytucyjnej panstw czlonkowskich Unii Europejskiej)

100%

Wojtowicz K.

Przegląd Sejmowy

2010

issue 4(99)

9-21

Complementing the principle of conferred powers by an obligation of the European Union to respect the national identity of member states specified in Article 4(2) TEU, inseparably linked with their political and constitutional structures, has induced some constitutional courts to apply the notion of 'constitutional identity' to determine a more precise limits of Union's competences. Therefore, even if the notion of constitutional identity (similarly to national identity) is not legally defined, in the content of constitutions of the member states one can find the principles governing the existence of a state as a specific, separate and sovereign body. For example, from the jurisprudence of the French Council of State it follows that the constitutional principles which specifically reflect the modern French statehood include those which are specified in Articles 1 and 3 of the French Constitution. Moreover, the German Federal Constitutional Court held that the constitutional authorization for Germany's participation in the process of European integration must remain within the limits prescribed by Article 79 (3) of the Basic Law. An a priori determination of strict limits of the EU competences is neither possible nor desirable, because the ultimate shape of its system of government cannot be predicted yet. However, the consolidation of the principle of respect for constitutional identity and specification of its content may contribute to the strengthening of the sense of legal certainty in the complex legal order existing in the European Union. Then, reinforcing of the effectiveness of integration will be balanced by the specification, in concrete terms, of the limits of Union's interference in the domestic legal systems of member states. The ensuring of such balance will depend on harmonious cooperation between the Court of Justice of the European Union and the courts of member states, particularly those responsible for the review of constitutionality of law.

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2 Przegląd Sejmowy

1 2010

1 2009

2 Wojtowicz K.

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OPENNESS OF THE GERMAN CONSTITUTIONAL SYSTEM TO EUROPEAN UNITY (Otwarcie systemu konstytucyjnego Niemiec na sprawy jednosci Europy)

RESPECT FOR CONSTITUTIONAL IDENTITY OF THE MEMBER STATES OF THE EUROPEAN UNION (Poszanowanie tozsamosci konstytucyjnej panstw czlonkowskich Unii Europejskiej)