European Constitutionalism and the German Basic Law

Abstract

The German Basic Law of 1949, intended to be the counter-authoritarian answer to the atrocities committed during the National Socialist regime, enshrines a distinctive and widely followed model of constitutionalism, entrenching institutions and procedures for the protection of fundamental rights. The Constitution begins with provisions on human dignity and inalienable human rights. It determines the unamendable substantive core of the constitutional order. A pre-eminent role is held by the German Federal Constitutional Court (FCC), and its judgments are taken into account early in the process of drafting legislation. The report outlines the extensive amendments that have been made to the Constitution to allow for EU and international co-operation. Both the Constitution and the Constitutional Court adhere to a Europe-friendly approach, albeit with limits. The FCC has delivered a considerable number of widely discussed constitutional judgments with regard to a broad range of EU measures, from the early Solange cases regarding fundamental rights to the more recent Data Retention, ESM Treaty and OMT cases, which are all summarised in the report. The extensive constitutional debates regarding the European Arrest Warrant system are also outlined. In the FCC case law on the euro crisis, a key theme is that financial liabilities ought to remain calculable, in order to preserve a link between the people and democratic representation through Parliament. More broadly, the report observes the way in which the constitutionalisation through EU Treaties of wide-ranging areas of regulation which are normally not found in constitutions has reduced democracy (the `over-constitutionalisation' thesis developed by Dieter Grimm); a case is made for a revised approach. Regarding contested aspects of transnational law, there has been a constant concern regarding its effects on the social state.