The Grundgesetz turns 70 – On the Europeanness of the German Constitution
The European parliamentary elections commence and the German Constitution turns 70 today, both on the very same day. Although arguably coincidental, this overlap offers the opportunity to investigate how “European” today’s German Constitution is.
Today, 23 May 2019, is a special day in two regards: First, the European parliamentary elections commence in the Netherlands and the United Kingdom, with the other 26 EU Member States to follow in the upcoming days. Second, the German Constitution (Grundgesetz or GG). turns 70 on this very day. Though perhaps merely coincidental – after all, the European elections were presumably not planned according to the constitution’s birthday – this overlap does present an excellent opportunity to dig deeper and investigate how “European” the German Constitution is.
On 23 May 1949 the new German Constitution was proclaimed by the Parliamentary Council. This proclamation marked the starting point of a new chapter in German constitutionalism, shaped in particular by the dreadful experiences during the Third Reich and the Second World War. Shaken by these events and the apparent inability of the Weimar Constitution to shield German constitutionalism against the Hitler regime, the Parliamentary Council drafted a new constitutional text that encompassed the absolute protection of human dignity (Article 1 GG), a catalogue of fundamental rights (Articles 2-19 GG), as well as the comprehensive protection of core German statehood principles such as democracy and the rule of law under Article 79(3) GG. As guardian of these constitutional principles, the Council established the German Federal Constitutional Court (Bundesverfassungsgericht (BVerfG)). Compared to other constitutional courts in Europe, the BVerfG stands out as being a highly authoritative, powerful as well as independent constitutional actor. It supervises the constitutionality of all governmental actions in Germany, including German EU policies. The German Court gained particular prominence in that regard, as it assesses the compatibility of EU measures and the transfer of additional competences to the EU with the German Constitution (see e.g. the recent preliminary references on the ECB’s OMT Programme (BVerfGE, 2 BvR 2728/13 et al.) and Quantitative Easing (BVerfGE, 2 BvR 859/15)). Despite criticism that can be raised on the Court’s assessment of EU matters, the jurisprudence underscores the supreme role of the Court in the German constitutional system.
Besides providing for a firm framework for institutional action, the German Constitution equally includes an explicit commitment to European cooperation. The preamble of the original 1949 text stated that Germany is committed “as an equal part of a united Europe to serve world peace” (explicit wording of the preamble of the Grundgesetz: “[…] von dem Willen beseelt, als gleichberechtigtes Glied in einem vereinten Europa dem Frieden der Welt zu dienen, […]”). The preamble thereby formulates an abstract objective for the German state and its institutions. Considering its systematic positioning in the preamble, the subsequent constitutional provisions may be interpreted in light of this very objective. In addition, the wording of the objective is abstract and broad. For example, it does not specify the precise form or extent of such European cooperation. This abstract wording is no surprise as it was simply not conceivable in 1949, so shortly after the Second World War, what cooperation in a “unified Europe” would look like. Yet, the explicit constitutional commitment to European cooperation opened a constitutional avenue that was subsequently employed politically, starting with the Schuman Declaration (1950) and continuing ever since. One can conclude that the continuous intensification of European cooperation corresponds with the constitutional objective formulated in the preamble of the Grundgesetz.
Next to this abstract commitment, the German Constitution equally contains an explicit provision on EU membership in Article 23 GG. This provision was introduced in 1992, directly following German reunification and, more importantly, coinciding with the adoption of the Treaty of Maastricht. Given that this EU reform treaty was seen as a significant step towards a more integrated Europe, it was deemed necessary in Germany to include a constitutional framework for EU membership. Interestingly, the new Article 23 GG on EU membership previously served as a constitutional basis for German reunification, which might be seen as highly symbolic. Today, Article 23 GG regulates both the involvement of the various German institutions in EU decision-making processes as well as the transfer of additional competences to the EU. Importantly, such transfer of competences is linked to broad structural requirements that EU cooperation has to fulfil: The EU has to be inter alia democratic, based on the rule of law and protect fundamental rights. Hence, Article 23(1) GG specifies in more detail the structure and organization of European cooperation, thereby setting a constitutional framework for German EU membership.
The framework for EU cooperation is further specified by Article 79(3) GG, the by now infamous German eternity clause. Under Article 79(3) GG, a list of German constitutional principles, including once again democracy, the rule of law and the protection of fundamental rights, is protected against constitutional change. Thus, the constitution-amending legislator has to refrain from altering the core of the protected principles, a mechanism against the erosion of the German constitutional system introduced in light of the historic experiences referred to above. The German constitutional court introduced – based on this provision – constitutional limits to EU cooperation and EU integration (cf. in particular the Lisbon-judgment (BVerfGE, 2 BvE 2/08, §§ 251-252)). This jurisprudence may be partly challenged by pointing to the added value of EU cooperation: It offers an additional legal layer for the protection of constitutional principles, as becomes obvious from the Hungarian and the Polish case. Here, various EU actors intervened to preserve the rule of law. Despite the limited possibilities the EU currently has to defend democracy, the rule of law, the protection of fundamental rights, etc. – principles also protected by the German eternity clause – EU action nevertheless offers an additional supervisory level. To my mind, this is an important dimension that the German jurisprudence should embrace more prominently.
To conclude, the German Constitution contains a firm commitment to Europe in its preamble, which corresponds to the post-war constitutional logic. This commitment forms the basis of German EU membership, which is now explicitly regulated by Article 23 GG. And yet, this should not be confused with an unconditional commitment to an ever-more integrated Europe, as the German constitutional court prominently concluded. Following this jurisprudence, the German Constitution imposes direct limits to EU cooperation. It remains to be seen what these limits ultimately entail. However, and given that the European parliamentary elections coincide today with the constitution’s birthday, one might call for a bigger appreciation of the advantages that EU integration offers for protecting national constitutional orders when defining the mentioned German constitutional limits, instead of portraying EU integration only as a constitutional risk.