ABSTRACT
The contestation of European integration and the constitutional dynamics of EU multi-level governance in Germany mainly are an issue for doctrinal constitutional law debates and for procedures before the FCC and resulting constitutional amendments and complementary legislation. Consequently, the answer to the question of whether Germany organised its constitutional system in a way that allows for easy incorporation of EU law, or whether it inserted mechanisms that first ensure legitimacy of EU law, is a rather balanced one. While the EU is recognised as a public power whose actions have immediate and direct effects within Germany, including for the individual, the case law of the German Federal Constitutional Court also established their limitations, under the notion of constitutional identity, respect for human dignity, and ultra vires control. Simultaneously, the FCC confirms its scrutiny over EU integration with regard to EU primary law as well as the adoption of EU secondary law and its implementation in Germany. Particular concerns so far are the democratic legitimacy of the integration process at the domestic and EU levels, as well as the protection of fundamental rights, where the FCC recently started acting as a reviewer over the domestic implementation of EU acts with regard to EU Fundamental Rights. The latter development signifies that the FCC, despite its mainly cautionary, defensive approach, also issued rulings in the interest of smooth implementation of EU law within Germany. The cautious approach of the FCC is reflected in the constitutional amendments, as they are more concerned with conserving German statehood and with meeting the institutional challenges of EU integration than with enabling the EU to function smoothly. But EU integration also induced the introduction of a genuine Europe clause which made EU integration a constitutional obligation beyond a mere “Europarechtsfreundlichkeit” of the FCC and its much-deplored approach to EU integration. Other amendments provided constitutional provisions to actively implement EU law. The amendments were not used to enshrine rules that clarify the legal value or direct effect, not to mention the pre-eminence of EU law. Furthermore, specific legislative acts have been adopted that provide for more detailed rules about parliamentary and federal states’ involvement in EU affairs. Also, Länder constitutions have been amended to reflect EU integration. EU integration led to novel conceptions in German constitutional law, such as an actio popularis in EU affairs based on a right to democracy, or responsibility for EU integration for German state authorities (Integrationsverantwortung), and for a greater role for the parliament in controlling and steering EU integration.
