About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

48 Common Market L. Rev. 9 (2011)
Constitutional Review of EU Law after Honeywell: Contextualizing the Relationship between the German Constitutional Court and the EU Court of Justice

handle is hein.kluwer/cmlr0048 and id is 11 raw text is: Common Market Law Review 48: 9-38, 2011. © 2011 Kluwer Law International. Printed in the United Kingdom. CONSTITUTIONAL REVIEW OF EU LAW AFTER HONEYWELL: CONTEXTUALIZING THE RELATIONSHIP BETWEEN THE GERMAN CONSTITUTIONAL COURT AND THE EU COURT OF JUSTICE MEHRDAD PAYANDEH 1. Introduction The relationship between the German Federal Constitutional Court and the Court of Justice of the European Union has been complicated and conflict- ridden since the early days of European integration. While the ECJ claims to be the final arbiter of EU law, the Constitutional Court reserves for itself a residual competence to review the constitutionality of legal acts of EU organs and institutions. In this context, the Constitutional Court has developed three different review functions. In the 1974 Solange I decision, the Court claimed to have the competence to review whether EU law is compatible with the fun- damental rights guarantees of the German Constitution (fundamental rights review).' In the Maastricht decision of 1993, the Court acknowledged its task to review whether EU legal acts remain within the limited competences of the EU and to declare acts that transgress these borders to be ultra vires and hence inapplicable in Germany (ultra vires review).' Most recently, in the 2009 Lisbon judgment, the Court has added the competence to review whether EU legal acts are compatible with the constitutional identity of the German Constitution (constitutional identity review).3 These three review mechanisms have to be clearly distinguished from each other, not only because they serve different functions, but also because the Court has developed them in different ways and applies different standards of review. However, the doctrinal need to treat the three review approaches distinctly should not be allowed to block the view for their interrelatedness. The three different lines of jurisprudence Dr. iur., LL.M. (Yale), Senior Research Fellow at the Heinrich-Heine-University of Dis- seldorf. The author is grateful to Julian Krtiper, Jan Petry and Heiko Sauer for their thoughtful and valuable comments. 1. Decision of 29 May 1974, BVerfGE 37, 271. 2. Decision of 12 Oct. 1993, BVerfGE 89, 155. 3. Decision of 30 June 2009, BVerfGE 123, 267. The Court has published a provisional Eng- lish translation of the judgment at <www.bverfg.de/en/decisions/es20090630_2bveOO0208en. html>. References in this article refer to the paras. of this translation.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most