Sonderdruck aus: GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FUR INTERNATIONALES RECHT Volume 43 - 2000 DUNCKER & HUMBLOT / BERLIN 2001GERMAN SECTION The Bananas Decision (2000) of the German Federal Constitutional Court: Towards Reconciliation with the European Court of Justice as Regards Fundamental Rights Protection in Europe By Anne Peters Expectations had been keen. Would the German Federal Constitutional Court (Bundesverfassungsgerichi) steer into an open confrontation with the European Court of Justice (ECJ) and declare a Community regulation violative of the German Basic Law? It did not. By order of 7 June 2000, the Court held that constitutional complaints (Ver- ‘fassungsheschwerden) by individual citizens and constitutional references by lower courts to the Constitutional Court, claiming that secondary Community law vio- lates fundamental rights protected by the German Basic Law (Grundgesetz), are a priori inadmissible if they fail to show that the European legal evolution has dropped below a certain fundamental-rights standard, The Court thereby practically denied to exercise jurisdiction while upholding a (more or less theoretical) reserve competence. The Bananas decision was issued on reference by the administrative tribunal (Ver- waltungsgericht) in Frankfurt The tribunal had been seized by various German im- porters of bananas, who argued that the European bananas marketing scheme (in force since 1993) infringes their property rights, professional liberties, and equal protection granted under the German Basic Law. The administrative tribunal had 'BVerfG, 2BvL 1/97, available at http://www.bverfg.de/, visited 10 August 2000; Neue Ju ristische Wochenschrift, vol. 53, 2000, 3124; Juristen-Zeitung, vol. 55, 2000, 1155 (with note by Claus Dieter Classen at 1157 et seq.) = Europiische Grundrechtezeitschrift, vol. 27, 2000, 328 = Europiische Zeitschrift fir Wirtschaftsrecht (EuZW), vol. 11, 2000, 702 (with note by Franz C. Mayer at 685 et seq.) ? Order of 24 October 1996, EuZW, vol. 8, 1997, 182 = Neue Zeitschrift fir Verwaltungs- recht, vol. 16, 1997, 515 L (head line).The Bananas Decision (2000) 277 considered these complaints to be well-founded and was therefore constitutionally obliged to stay the proceedings and refer to the Federal Constitutional Court for a decision (Art, 100 Basic Law). It took the Federal Constitutional Court almost four years to declare the refer- ence to be manifestly inadmissible. Outsiders can only speculate as to whether the Court waited so long because it hoped for a solution of the bananas troubles on the WTO-level or through political means, or whether the delay had something to do with waiting for the retirement of Justice Paul Kirchhof, who was the rapporteur of the notorious Maastricht decision of 1993. Maybe the prospects of a European Char- ter of Fundamental Rights, which was essentially a German project, were also taken into account by the Justices. This project strengthened confidence in the European system of fundamental rights protection and favored a corresponding revocation of Member State Court jurisdiction. It remains to be seen whether the Charter, which does not (yet) enjoy any formal legal status, will substantially increase the protec- tion of fundamental rights on the European level.” The highly controversial question underlying the Bananas order is whether Com- munity acts must under Art. 6 (2) EU-Treaty not only respect European fundamen- tal rights (as enshrined in the European Charter of Fundamental Rights and in the case law of the European Court of Justice (EC]), which in tura relies on the Euro- pean Convention of Human Rights and on general principles of Community law derived from the Member States’ common constitutional traditions), but must also respect ~ potentially divergent - Member States’ domestic fundamental rights (as de- fined by the Member States themselves). This question is but one facet of the more general problem of the relationship between Community law and Member State law and an eventual hierarchy of norms, As of yet, no single answer to the basic question is generally accepted. The ECJ and some Member State courts find that EC law is superior to Member State law, including Member State constitutions. In con- trast, the majority of Member State courts, including the German Constitutional Court, have more or less explicitly ruled that Community law may not overstep certain national constitutional limits, which vary from Member State to Member State.* In practice, the question of hierarchy is commonly framed as a procedural ques- tion: To what extent are (constitutional) courts of Member States competent to de- cide that a Community act has violated the State’s constitution? In Germany, this > Formally declared at the intergovernmental conference in Niza on 8 December 2000, english text available at hetp://www.europarl.eu.int./charter/activities/convent50_en.pdf, visited 18 January 2001, * See on the divergent positions of the EC] and the Member State Courts on the relationship between EC law and the national constitutions and on the respective judiciaries’ pretensions to decide on eventual conflicts Anne Peters, Elemente einer Theorie der europaischen Ver- fassung, part 3, IV, forthcoming.278 Anne Peters procedural question mostly arose with regard to the alleged violation of domestic fundamental rights of German citizens, Three landmark decisions of the German Federal Constitutional Court have dealt with this question, and the Bananas order is the fourth one. In the 1974 judg- ment Solange I, the Court decided that the protection of fundamental rights on the Community level was not yet adequate; thus constitutional protection against in- fringent of German fundamental rights by secondary Community acts was to be granted by the German Federal Constitutional Court? Only two weeks later, the EC] issued the Nold decision, in-which it elaborated its previous pronouncements on fundamental rights protection. Here, the ECJ rooted the European fundamental rights in the constitutional traditions common to the Member States and in international treaties for the protection of human rights, viz. the European Convention for the Protection of Human Rights and Fundamental Freedoms. In the following years, a body of European fundamental rights has been established through case law, although the edifice is far from being as refined as, e.g., the German system of fundamental rights protection. Also, all main European insti- tutions issued declarations acknowledging that the exercise of their powers is legally bound by the European fundamental rights. With view to the positive developments in Community law, the German Federal Constitutional Court formulated its 1986 Solange II decision.” It held that “a mea- sure of protection of fundamental rights has been established in the meantime with- in the sovereign jurisdiction of the European Communities which in its conception, substance and manner of implementation is essentially comparable with the stan- dards of fundamental rights provided for in the German Constitution.”* The Fed- eral Constitutional Court went on to say that the fundamental rights standard had, particularly through the decisions of the ECJ, been formulated in content, consoli- dated, and adequately guaranteed, Therefore, the Court in Solange II concluded that “so long as the European Communities, and in particular in the case law of the European Court, generally ensure an effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as sub- stantially similar to the protection of fundamental rights required unconditionally by the Basic Law, and in so far as they generally safeguard the essential content of fundamental rights, the Federal Constitutional Court will no longer exercise its ju- risdiction to decide on the applicability of secondary Community legislation cited as the legal basis for any acts of German courts or authorities and will no longer re- 5 BVerfGE 37, 271 (1974); English translation in Andrew Oppenheimer (ed.), The Rela- tionship between European Community Law and National Law: The Cases, 1994, 419 et seq. © Case 4/73, Nold v, Commission, 1974 ECR 491, para, 13. 7 BVerfGE 73, 339 (1986); English translation in Oppenheimer (note §), 461 et seg. * [d,, 378 = Oppenheimer (note 5), 487‘The Bananas Decision (2000) 279 view such legislation by the standard of the fundamental rights contained in the Ba- sic Law; references to the [German Constitutional] Court under Article 100 (1) [of the German Basic Law] for that purpose are therefore inadmissible.”” ‘The Maastricht decision of 1993" seemed to embody ~ in the eyes of most observ- ers ~a slight retreat from the quite pro-European Solange II position, The Court in Maastricht claimed for itself the function to “guarantee ..., by virtue of its jurisdic- tion, that persons resident in Germany are assured in general of effective protection of basic rights, even in relation to the sovereign power of the Communities, and that this protection is essentially to be regarded as substantively equivalent to the protection of basic rights laid down as inalienable by the Basic Law, especially as the Court guarantees in general the substance of the basic rights. The Federal Constitu- tional Court thus also safeguards that substance vis-i-vis the sovereign power of the Community.”" The Court stressed that Community acts also affect the guarantees contained in the Basic Law, and that it was the task of the Federal Constitutional Court to protect “basic rights in Germany and, to that extent, not only in relation to German State organs.” This arrogation of jurisdiction was tempered by an offer of cooperation addressed to the EC]: “However, the Federal Constitutional Court exercises its jurisdiction over the applicability of secondary Community law in Ger- many ina ‘relationship of cooperation’ with the European Court of Justice. The European Court of Justice guarantees the protection of basic rights in each individ- ual case for the entire territory of the European Communities, and the Federal Con- stitutional Court is therefore able to confine itself to providing a general guarantee of the unalterable standard of basic rights.”” A great number of scholarly articles and books have been written about this passage, discussing what the alleged rela- tionship of cooperation was supposed to be in concreto.” ‘The Bananas decision now specifies or recasts the Maastricht decision as regards the protection of fundamental rights. The Court in Bananas makes clear: “A con- gruent protection in the various fundamental rights areas of the German constitu: tion by European Community law and the case law of the European Court of Jus- tice based thereupon is not required. Constitutional requirements corresponding to the conditions set out in ... [the Solange II decision] are satisfied when the case law of the European Court of Justice generally guarantees an effective protection of fundamental rights vis-a-vis the sovereign power of the Communities, which can be considered as essentially equivalent to the fundamental rights protection that is in- * Id., 387 = Oppenheimer (note 5), 494. "© BVerfGE 89, 155 (1993); English translation in Oppenheimer (note 5), 527 et seq. " [d., 174-5 = Oppenheimer (note 5), 545-6, " Id., 175 = Oppenheimer (note 5), 546. ® See only Petra Funk: Riiffert, Kooperation von Europiiischem Gerichtshof und Bundesver- fassungsgericht im Bereich des Grundrechtsschutzes, 1999, with further references.280 Anne Peters dispensably required by the German Basic Law, in particular as it generally safe- guards the essential core [Wesensgehalt] of the fundamental rights.”"* The consequence is that references and individual constitutional complaints are a priori inadmissible if they fail to show that the European legal evolution has drop- ped below the indispensable fundamental rights standard, including the jurispru- dence of the EC] since the Solange II ruling. Therefore, the foundation of a refer- ence for ruling of a lower court and the foundation of an individual’s constitutional complaint must show, in detail, that the indispensable fundamental rights protec- tion required in the respective case has generally not been granted, This requires a comparison of the fundamental rights protection on the national and the Commu- nity plane, as offered in the Constitutional Court decision Solange II of 1986." The referring administrative tribunal had argued that the Maastricht decision turned away from Solange II to the extent that the Court in Solange I had deter- mined not to exercise jurisdiction for protecting “German” fundamental rights, whereas the Court in Maastricht claimed jurisdiction on that matter. The Court in Bananas replied that the tribunal misunderstood Maastricht, and that both decisions are in line. Perhaps the truth lies somewhere in between. Solange I and Maastricht do not contradict each other on their face, but Maastricht surely placed more empha sis on the Federal Constitutional Court’s jurisdiction. Whatever the politics behind the Court’s attempt in Bananas to downplay diver- gences between previous leading decisions, it is laudable that it uses more Solange II- than Maastricht-language. Whether this is really different in substance from 1993 or is merely more reconciliatory in tone is not so important ~ what matters is that the ruling renders superfluous academic second-guessing on the reclaimed role of the German Federal Constitutional Court with regard to the protection of human rights against Community action, ‘The Bananas decision has clarified at least two controversial points: Firstly, the Federal Constitutional Court is not competent in each individual case of an alleged violation of fundamental rights but only in the event of a general failure of fundamental rights protection by the EC]. The Court’s references to the “legal evolution” and to the “general guarantee” of fundamental rights leaves no doubts in that respect, Secondly, should the exceptional situation arise in which the German Federal Constitutional Court will exercise its jurisdiction, the Court will not require European institutions to observe the full “German” fundamental rights standard but only a minimum standard, This question had explicitly been left unanswered by the Court as recently as 1997 when the Court wrote in its order on the European tobacco regulation that it was not necessary to decide “which fundamental rights standard is ™ BVeriG, 2 BvL 1/97, 7 June 2000, para. 61; translated by the author, Id,, head notes 1 and 2, referring explicitly to BVerfGE 73, 339, 378-381 (1986).‘The Bananas Decision (2000) 281 applicable to secondary Community law.”"* The minimum standard now conceded seems to correspond to what is in German constitutional doctrine termed the essential core of fundamental rights [Wesensgehalt] in the sense of Art. 19 (2) of the German Basic Law. In the Bananas order, the Court consequently did not pronounce itself on the alleged violation of fundamental rights in substance; but apparently it considered as self-evident that the essential cores of property rights, professional liberty, and equal protection are not affected by the bananas marketing scheme. It must, however, not be forgotten that the Federal Constitutional Court does not completely give up all aspiration to jurisdiction, but that it retains a kind of subsidiary emergency jurisdiction. Also, the Bananas decision does not say any- thing on the second basis of jurisdiction formulated in the Maastriche decision. The Court in Maastricht claimed a second type of jurisdiction and held itself competent to examine “whether legal acts of the European institutions and bodies keep within or exceed the limits of the sovereign rights granted to them.”” Some lower courts have tended to conflate both points and have argued that every violation of fundamental rights is atthe same time an sltra-vires act, but this reasoning neglects that the limits of Community competences are genuinely a Community law ques- tion, whereas the infringement of domestic fundamental rights is a matter of Mem- ber State law (the question being whether this body of law is applicable or must give way). So both reclaimed bases of jurisdiction must be kept apart. The jurisdic- tion over allegedly slera-vires acts is perhaps even more problematic than the juris- diction over fundamental rights, but this was not at issue in the Bananas case. Straight Europhiles will point out that the theoretical reserve competence, which the German Federal Court still asserts, is irreconcilable with the EJC’s pre- tension to be the sole arbiter of Community law and the view that all Community law trumps all national law, including national fundamental rights." However, * BVerfGE 95, 173, 181 (1997). " BVerfGE 89, 155, 188 (1993) = Oppenheimer (note 5), 556. * Case 11/70, Internationale Handelsgeselschaft v, Einfubr. und Vorvatsstelle fir Getveide und Futtermittel, XVI (1970-1) ECR, 1125, para. 3. See already combined cases 36/59, 37/59, 38/59, and 40/59, Prisident Rubrkoblen- Verkaufigesellichaftv. Hoke Behirde, VI-2 (1960) ECR 885,920.21, later case 44/79, Hauser v, Land Rheinland: Pfalz, 1979 ECR, 3727, para. 14; case 234/85, Keller, 1986 ECR, 2897, para. 7; case C-473/93, Kommission v, Luxemburg, 1996 ECR I-3207, Para. 37; also opinion of the Advocate Genereal Léger, para. 155, In scholarship, e.g, Joseph H. H. Weiler/ Nicolas . C. Lockhart, “Taking Rights Seriously” Seriously: The European Court and its Fundamental Rights Jurisprudence - Part I, Common Market Law Review, vol. 32, 1995, 51, 74-75: “The mere fact that the interference [with the fundamental free movement provisions] may emanate from a constitutional norm is, in and of itself, irrelevant. Likewise, the fact that the constitutional ‘measure may be an expression of a deeply held national societal more or value is, in and of itself, irrelevant. ... One may not like this, one may think that this is a very bad regime, one might have voted against Maastricht for this reason, but such is the consistent case law of the ECJ and those are the implications of Community membership ...”282 Anne Peters this inconsistency between the ECJ’s position and that of most Member States’ courts is a fact with which academics will have to learn to live. In the absence of one single authority situated over and above the rivaling courts, the conflict is un- resolvable by imposition of a rule of pre-emption or an authoritative attribution of jurisdiction “from above.” The conflict may, however, be mitigated by converging the positions; and the Bananas decision seems to be one step in that direction.