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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.

THE PRINCIPLE OF OPEN STATEHOOD IN THE BASIC LAW OF THE FRG (Zasada otwartej panstwowosci w Ustawie Zasadniczej RFN)

88%

Wojtyczek K.

Przegląd Sejmowy

2009

issue 6(95)

The principle of open statehood is one of the main principles of German Basic Law. According to this principle, the German state is ready to accept and realize international norms and standards, and is open to various forms of international cooperation and integration. Open statehood of the FRG means, in particular, renunciation of the claim to have exclusive state powers in the state territory and allowing foreign public authority acts to interfere with the domestic public order. Of key importance for the principle of open statehood was Article 24 of the Basic Law which provided for three forms of international cooperation, at the same time authorizing to make use of them, including: transfer of sovereign powers, participation in collective security systems and international arbitration. For many years the provisions of Article 24 provided the legal basis for transfer of sovereign powers by the FRG to the European Communities. Since 1992 , the constitutional basis of European integration is provided by the European clause contained in Article 23 of the Basic Law. A considerable body of jurisprudence has been developed by the Federal Constitutional Court in respect of Articles 23 and 24 of the Basic Law, by which it has determined the content and limits of open statehood. Open statehood has a dynamic nature. Transfer of sovereign powers by the state to supra-national organizations causes various constitutional problems. In order to resolve them, it is required that additional provisions are made in the Basic Law. The Basic Law seems to operate as a legal framework and an instrument for transformation of the statehood and political system. It is a 'live' legislation, as its meaning is not determined once and for all, but undergoes changes during this transformation. At the same time, the organic law-giver implicitly assumes modifications of the text of this act to achieve supreme constitutional goals and values. The FRG's example may encourage other countries to consider their constitutional identity.

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2 Przegląd Sejmowy

2 2009

1 Wojtowicz K.

1 Wojtyczek K.

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

THE PRINCIPLE OF OPEN STATEHOOD IN THE BASIC LAW OF THE FRG (Zasada otwartej panstwowosci w Ustawie Zasadniczej RFN)