Constitutional Law, Europe, Germany, Verfassungsrecht

A ‚Dexit‘ by Karlsruhe?

I’ve been pondering about the ramifications of the current confrontation of the German Constitutional Court and the European Court of Justice, and it seems to me that this confrontation, much more than Italian misgivings about the lack of Corona-bonds, has the potential to rip apart the European Union. For reference, check this article by Bloomberg News.

Last week, the German Constitutional Court decided, that ECJ’s verdict with respect to the legality of a specific ECB programme for monetary policy, was „ultra vires“, beyond its powers, meaning that the court’s verdict has no biding effect for German institutions.

In turn, the ECJ maintains that it is – and can be – the only institution to give binding interpretations of European law.

The problem is that the hierarchy of norms, and courts, has never been clearly and formally established with respect to European law, but most courts, most of the time, accept the doctrines of supremacy of EU law and its direct effect, developed by the ECJ in decades of case law.

And while it wasn’t too easy doctrinally for the German Constitutional Court, until last Tuesday, the Court usually managed to get around the problem by using one of a couple of legal mechanisms it developed to doctrinally remain in power while practically handing over the reigns to the ECJ in most cases relating to European law. One of the meachnisms has a name that describes how they all work: „as long as“ (we deem that the ECJ is upholding constitutional rights of German citizens „on par“ with what we would do, we don’t check every ECJ verdict.)

No longer.

I’m sure it was to no small extent the seemingly arrogant way in which the ECJ brushed aside the German Constitutional Court’s concerns with respect to the specific matter at hand that now caused the Constitutional Court to basically do the same – the practical requirements imposed on the Bundesbank, and thus the ECB, to comply with the verdict are, by all means, manageable – and instead declare that the ECJ that its verdict was beyond „as long as“, that is no longer tolerable.

For the Constitutional Court, this will probably feel like restating the legal obvious, although the words spoken by the Court’s President Andreas Voßkuhle prior to the verdict indicate that the Justices were quite aware of the potential political ramifications of their decision.

And the Court’s critics were vocal and numerous. So vocal, in fact, that some Justices reacted to their critics by explaining that this verdict was inevitable (faz.net, in German).

Now it appears the only way for the European Commission to react to the Court’s verdict is to sue Germany for not abiding by the European Contracts (as interpreted by the ECJ), before, well, the ECJ. And it is hard to imagine the ECJ would find a way to abandon its previous doctrinal position with respect to its legal supremacy in European legal matters, which would mean that the ECJ would have to find that the German Constitutional Court’s verdict was in breach of the Treaties of the European Union.

Which, in turn, would probably force the Constitutional Court to find those contracts unconstitutional under the German constitution, whose article 79 III explicitly prohibits such a general, unspecific, transfer of sovereignty.

As Justice Huber explains in the interview above – if the ECJ’s claim that it is the only legally binding interpreter of European law were to prevail in light of the Treaties of the European Union, it would probably mean that Germany, as well as, potentially, other member states would not have been legally able to become a member of the EU on those premises.

In other words, it seems to me that, if forced into that corner, the German constitutional court would have no other way than to rule, very likely against its own politcal inclination, that the European Treaties can, under those circumstances, no longer be applicable under the German constitution. And while I am quite certain that would not be an outcome desired by anyone, it is hard to see a way around this: the Grundgesetz is quite literal in that respect.

Which, again, in turn, would then at least require a treaty renegotiation that would codify the ECJ’s derived competence as arbiter of last resort, or in the German case, likely a new Constitution that would allow for a European institution to be the ultimate arbiter in German Constitutional matters.

While I don’t think anyone would want such a political debate about a new constitution, as its outcome would be by no means certain, with respect to a lot more aspects than merely the question of ECJ supremacy wrt to European law.

However, if the Commission doesn’t back down here in a way that would allow everyone to go back to their doctrincal corner ex ante and pretend that nothing happend, that „as long as“ can still work as „don’t ask, don’t tell“,then I currently can only see this turning into a massive constitutional crisis, aka a big motherf***ing cluster**ck for everyone, in the second half of 2020, potentially even pitting the German government against the German Constitutional Court.

I may sound crazy at this point, but maybe the world is no closer to a vaccine for Covid19 than Germany is to a new Constitution.


This post has benefitted from a facebook discussion with some experts who, by and large, did not consider the situation to be as problematic as I think.

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Bürgerrechte, intellectual property rights

What Fuckery Is This?

Over at afoe, Alex has put it more eloquently than I would have. Specifically by asking the question above which I probably would have avoided, but which is more than appropriate in this case –

„What fuckery is this? It looks like the French government, having failed to impose an awful record-industry inspired snooping act at home, is trying to policy-launder it through the European Union. The so-called “3 strikes” law foresaw that ISPs would be required to cut off service to anyone who was found downloading or distributing copyrighted material three times – which of course implied that the ISPs would be expected to filter all traffic by content, a wildly grandiose, authoritarian, and insecure idea. (Wonderfully, Nicolas Sarkozy outsourced his Internet policy to a committee led by the owner of a chain of record shops; a little like putting the manufacturers of candles in charge of street lighting.)

But the legislation failed in France; so here it is, coming straight back via the European Parliament. The odd bit, though, seeing as it’s a French idea chiefly backed by the EPP (=European Conservative group), is that it’s being pushed by the British Tories in Brussels – half of whom don’t believe there even should be a European Parliament. Specifically, according to Heise.de (German link), it’s the Tory MEPs Malcolm Harbour and Sayed Kamal. Kamal is responsible for possibly the most egregious tagnut of a clause in the whole thing, which would permit essentially unrestricted telecoms surveillance for the (naturally undefined) “security of a public or private communications system”, and Harbour for the copyright/content-sniffing bit.“

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Allgemein

Heul doch

Spiegel Online berichtet darüber, was passiert, wenn man Klein-Silvio sein Spielzeug wegnimmt: Eklat im Fernsehen: Berlusconi unterbricht wutentbrannt Live-Interview

Die kritischen Fragen einer Fernseh-Journalistin passten Italiens Regierungschef Silvio Berlusconi nicht: Er bezeichnete den Sender als „Kriegsmaschine“, brach das Live-Gespräch ab und stürmte wutentbrannt aus dem Studio.

Aber vielleicht ist er auch nur gereizt, weil er versprochen hat, bis zur Wahl keinen Sex zu haben. JFK hat uns schließlich schon vor langen Jahren darüber aufgeklärt, daß Politiker Kopfweh bekommen, wenn sie nicht jeden Tag Sex haben…

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Allgemein

Kaczynski on the maths of human sexuality.

Polish President Lech Kaczynski apparently tries really hard to become respected by his peers. And since politics often is such a nonsensical game he probably figured that it will be best to do what he thinks politicians do when in Rome (incidentally that joke is not so funny these days) – make no sense.

Interestingly, today’s Welt am Sonntag has an interview hopefully ironically titled „I am realist (in German)“ in which Mr Kaczynski repeates his understanding of the nature of human sexuality, which he already explained during a speech at Berlin’s Humboldt University, where he was interrupted by a group of gay rights activits protesting some limitations of gay rights in Poland.

Following the incident he stated, and he apparently doesn’t mind to repeat that in print, that gays are in some sense dangerous because they are promoting their lifestyle as an alternative for the majority (sic!).

„Imagine a world in which 50% of men were no longer interested in women, that would be a different world, and that would be dangerous from a biological point of view as well as from a cultural one“ (my translation)

I believe he did not really think this argument through. Imagine the benefits – in such a situaion there would be roughly two women for each of the rest of us. Statistically only, true, but still. Thus, as there will not be too many heterosexual men arguing against having more choice among women, President Kaczynski’s overly transparent display of short-sightedness might very well raise some eyebrows in his staunchly conservative constituency…

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Allgemein

Riots in Paris

When my car’s windows were smashed twice during the world cup in 1998, when I was living in 10th Arrondissement, I had my car repaired in a garage in Clichy.

I actually lived in a Banlieue for a couple of months before moving to the city . But „92“, or Val d’Oise, wasn’t what most people would expect a Banlieue to be like, maybe except for the mall, for the life that revolved around the local Auchan.

Still, today, seeing pictures from St. Denis, I am just as much at a loss of comprehension as most commentators who just open their drawers and recompile some standard arguments about economic problems, immigrant societies, and religious clashes. But in the end, all this is really just a lack of understanding.

Last night, the first cars were allegedly burnt in Berlin and Brussels. It suddenly looks like we do have a common European public sphere. And possibly a common European social model, all differences notwithstanding.

At this point, I don’t know what all this means. In France, the position of Mr Sarkozy is very much at stake. But what if he were to step down? A Presidential hopeful brought down by angry youth? It would probably be a new Europe thereafter.

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Allgemein

Break’s Over.

My gentle readers, the break’s over. And now that my little quasi-diary is actually back online, I would like to formally introduce a blog I know many of you have been checking out occasionally during the past few weeks – A Fistful Of Euros.


I am grateful to have been asked to be a part of this attempt to aid in creating a common European public sphere, or rather, let’s be a bit more realistic, in creating a common European blogosphere. So far, the venture has been surprisingly successful.


I have no idea how I am going to divide my writing between „almost a diary“ and „AFOE“ and I may also repost stuff from AFOE here and vice versa, as I regard this page as some kind of personal online publishing archive.


Believe it or not, the last few weeks of severly reduced writing were actually rather refreshing, I have to say. But as all holidays must come to an end, so is this. And just in time for what will most likely become one of the most interesting periods in German Parliamentary history.


There is a short window of opportunity for real change, now that the next Laender-elections won’t take place until next summer. This time, the German political class is serious about showing that decisive action can be taken without destroying what little is left of civic spirit among all of us.


Schroeder clearly has the hardest task in this game. He’s got to fight a two-front battle against his own party’s loony left and the opposition’s intention to make this battle harder than necessary by not allowing him to shine as the savior of the welfare state. The CDU/CSU is running a dangerous strategy though. Germany is not Bavaria. And there won’t be general elections for another three years. It’s certainly too early too tell what the real economic effects of the initial social security reform acts are going to be.


But there’s a real chance that they will enhance growth in 2006 when it matters. And guess to whom it would be attributed.

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quicklink

traffic data retention.

Ever wondered what the legal situation regarding internet traffic data retention by ISPs and governmental access is in EU countries? Don’t look further, saveprivacy.org has a note sent by the general secretariat of the EU council to the EU’s Multidisciplinary Group on Organised Crime (MDG) that outlines the current legal situation as well as possible future projects with respect to traffic data retention.

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Allgemein

Oh Gino, Oh Gino Ginelli

Oh Gino, Oh Gino Ginelli
Yesterday, a friend reminded me of what name Stefano Stefani reminded me of – a popular Italian Ice cream advertising character from the late 1980s, Gino Ginelli.
As for Stefani, he has been signalled by someone important to take a longer vacation. He supposedly resigned a few minutes ago. Apparently his apology did not please his master, even though it is indeed funny – but I understand that Mr Berlusconi is a bit more careful now with his laughs ;). That’s what Stefani said earlier today, according to MSNBC
“I’m sorry,“ Stefani said in a statement to be published in the newspaper on Saturday. “I love Germany. If my words caused a misunderstanding for many Germans I would like to say here that I am very sorry.“ Stefani added that Germans “are always welcome in Italy“ and that they are “exemplary neighbours and reliable friends.“ He said his earlier criticism had been misunderstood and he was only trying to defend Italy against those who had attacked it. Stefani, responsible for tourism, told a newspaper last week Germans had been “indoctrinated from the beginning to feel top of the class whatever the situation.“ He also said Germans “loudly invaded“ Italian beaches and called them arrogant beer guzzlers who hold “noisy burping contests.“ He had until Friday refused to apologise for the remarks. “
Hilarious. Bild is certainly not too happy about the sudden end to this affair. Now that they actually planned a German invasion of Italian beaches…
Done and over with. But before we really forget about this nonsense, let me tell you about a really funny link that Lillimarleen found. It confirms all your steretypes about Italy and is nonhteless funny… in a stereotypical kind of way ;).

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