The Karlsruhe Judges with Real Teeth
9 November 2010
As we have seen from the recent ruling from the Supreme Court in Pinnock, British judges regard themselves as constrained to follow a “clear and consistent” line of authority from Strasbourg, even though the latter has no binding authority over the appellate courts in this country. Indeed, as we have noted in our post on the case, it overruled three of its own precedents without any ado.
How different the picture is in Germany, where the highest Constitutional Court, the Bundesverfassungsgericht, is armed with tremendous powers by the German Grundgesetz, or Basic Law, to uphold its own interpretation of national law in judgments that go to the heart of what the executive is or isn’t allowed to do.
We touched in an earlier post on the power of the BVerfG to ensure that the Community institutions do not exceed the sovereign powers transferred by the German law ratifying the Treaties. According to Charlemagne in The Economist –
In the European Union, it seems, the creatures of dread are the red-cloaked members of the Bundesverfassungsgericht…which is zealous in protecting national sovereignty and limiting the EU’s powers.
At the moment it is considering the legality of the €750 billion rescue fund for the euro zone, a continuing case brought as a result of a request by a citizen, based on the Basic Law, to block the nation from participating in the euro-area rescue fund. The request was rejected in June (BVerfG, 2 BvR 1099/10) but the important point was that a mere citizen had standing to bring this challenge, and, in reaching their conclusion, the judges didn’t rely on the government’s argument that the rescue fund was constitutional. This constitutional question therefore remains open. So even though it is unlikely that the BVFG will declare the temporary IMF-backed fund illegal on this occasion, this episode illustrates the significant powers of the court, at the behest of German citizens, to set limits to the aggrandizing tendencies of European institutions. In 2009 for example the BVerfG held that the Lisbon Treaty was not incompatible with the Basic Law in that it does not transform the EU into a federal state (read the English version of the judgment) . But by upholding the treaty on its own terms the Court signalled that member states of the EU wield the political power and any encroachment on that independence would lead to another review.
Of course the nature of our unwritten constitution and the common law basis for judicial power make for a very different structure in the UK Supreme Court. Nevertheless the combination of the BVerfG’s cast iron defence of constitutional rights in the Grundgesetz, and its practice of exercising judicial restraint, is a matter of some envy in this era of judicial creationism.
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