- BVerfGE 73, 339 2 BvR 197/83 Solange II-decision
- 22 October 1986
- Zeidler, Dr.Dr. h.c. Niebler, Steinberger, Träger, Mahrenholz, Böcken-förde, Klein, Graßhof
- © Nomos Verlagsgesellschaft
1. a) The European Court of Justice is a 'statutory court' within the meaning of Article 101 (1) Basic Law. It is a sove-reign organ of judicature established by the Communi-ty Trea-ties, which, on the basis of and within the frame-work of a le-gally established jurisdiction and proce-dures, in principle, makes final decisions in a state of judicial independence on legal questions in accordance with legal rules and legal stan-dards.
b) The procedural law of the Federal Supreme Court meets the legal requirement of a free hearing, a procedure that af-fords an appropriate means of defence and a right to counsel of choice.
2. As long as the European Communities, in particular Euro-pean Court case law, generally ensure ef-fective protection of fundamental rights as against the sove-reign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditio-nally by the Constitution, and in so far as they generally safe-guard the essential content of fundamental rights, the Federal Constitutional Court will no longer exer-cise its jurisdiction to decide on the appli-cability of secon-dary Community legisla-tion cited as the legal basis for any acts of German courts or authorities within the sovereign juris-diction of the Federal Republic of Germany, and it will no longer review such legisla-tion by the standard of the funda-mental rights contained in the Basic Law; references to the Court under Article 100 (1) Basic Law for those purpose are therefore inadmissible.
Order of the Second Senate of 22 October 1986 -- 2 BvR 197/83 --
in the procedings concerning in the constitutional complaint by the firm W. against the decision of the Federal Admini-stra-tive Court of 1 December 1982 -- 7 C 87.78 --
The constitutional complaint is rejected.
EXTRACT FROM GROUNDS:
1. The appellant's business includes the importing of
-preser-ved mushrooms from non-European Communi-ty States into the Fe-deral Republic; such imports are subject to Community regula-tions.
b) It applied in writing to the competent Federal Office for Food and Licence to import 1,000 tons of preserved mushrooms from Taiwan. The application was refused with re-ference to the provisions of Regulation 2107/74.
After unsuccessful review proceedings the appellant brought an action before the Frankfurt Administrative Court (Verwaltungs-gericht) arguing that the continuation in force of Regulation 2107/74 beyond 1 July 1976 was not justified.
By its judgment of 25 July 1978 the Frankfurt Ad-ministrative Court dismissed the application as unfoun-ded on the ground that the refusal of the licence had not been unlawful. In the court's view Regulation 2107/74 corresponded to the objectives specified in Article 39 of the EEC Treaty.
2. a) The appellant entered an interlocutory appeal against that judgment. In its decision of 25 March 1981 the Fe-deral Supreme Administrative Court (Bundesverwaltungs-gericht) in re-sponse to the appellant's application suspended the procee-dings and referred the following question for interpretation to the European Court und Article 177 (3) of the EEC Treaty:
Did Regulation 2107/74 of the Commission of 8 Au-gust 1974, laying down protective measures applica-ble to imports of preserved mushrooms, infringe the combined provisions of Article 7 (1) of Regulation 1927/75 of the Council of 22 July 1975 concerning the system of trade with third countries in the market in products processed from fruit and vegeta-bles and Article 2 (2) of Council Regulation 1928/75 of 22 July 1975 laying down detailed rules for applying measures in the market in products processed from fruit and vegetables in so far as it was retained in force after 30 Juni 1976?
aa) The reasoning of the Federal Supreme Administrative Court ... for present purposes was that the refusal of its application for a licence by the defendant's decision of 15 July 1976, which the appellant ob-jected to as unlawful, could only be based on Regu-lation 2107/74, the legal basis for which in its turn was the Regulation 1927/755 and 1928/75.
b) -- bb) ...
c) The European Court considered the question whether the Commission had correctly used its discretion in making its assessments when the disputed regulations were adopted.
In answer to the question referred to it by the Supreme Administrative Court the Court ruled that:
consideration of Commission Regulations Nos 1412/76 of 18 June 1976 and 2284/76 of 21 September 1976 has disclosed nothing which affects their validity.
d) In further proceedings before the Supreme Administrative Court the appellant objected that there had been a breach of various constitutional rules and requested that the procee-dings be suspended and that either the question whe-ther Regu-lations 1412/76 and 2284/76 as interpreted by the Eurepean Court in its judgment of 6 May 1982 in Case 126/81 could be applied in the Federal Republic should be re-ferred to the Federal Constitutio-nal Court under Article 100 (1) of the Basic Law or whether a fresh reference should be made to the European Court under Article 177 (3) EEC.
aa) -- bb) ...
e) In its judgment of 1 December 1982 (7 C 87.78) the Federal Supreme Administrative Court dismissed the appeal as unfounded.
aa) It refused a fresh reference to the European Court un-der Article 177 (3) of the EEC Treaty on the ground that the relevant accusations in the appeal related only to the consi-deration of evidence under-taken by the Court; but that gave no occasion to doubt the correctness or clarity of the judgment. ...
bb) The court found that a reference to the Constitutio-nal -Court under Article 100 (1) of the Basic Law did not come into consideration since that provision gave the Court a power of review only over the legis-lature, but not over the courts, and therefore not over the European Court either (citing BVerfGE 7, 1 ). It could not be concluded from the fact that the Federal Constitutional Court claimed the autho-rity to appraise subordinate Community legislation by reference to the stan-dards of constitutional rights that it was also entitled, in the context of proceedings under Article 100 (1) of the Basic Law, to review judgments of the European Courts as re-gards their compatability with procedural rights in the nature of fundamental rights (citing BVerGE 37, 271; 52, 187 ). Since the Federal Consti-tutional Court itself did not have such authority, the attacks on the judgment of the European Court based on alleged infringements of the right to a le-gal hearing and recourse to a statutory court could not be enter-tained.
In its appeal on constitutional grounds the appellant claims that the judgment of the Federal Supreme Administrative Court disregarded its procedural and substantial rights under the Basic Law.
It takes the view that the Supreme Administrative Court dis-regarded Articles 19 (4), 103 (1) and 101 (1), second sen-ten-ce, of the Basic Law in conjunction with Article 177 (3) EEC because, by failing to make a fresh reference to the Euro-pean Court under Article 177 (3) ECC or a reference to the Fe-deral Constitutional Court under Article 100 (1) of the Basic Law with the opportunity in the latter case for a sub-sequent appli-cation to the European Court, it did not ensure that the Euro-pean Court's preliminary ruling was 'clear and correct in view of the alleged non-treatment in the reasons for the judgment of essential submissions of fact made for the purposes of pur-suing the action'.
1. -- 3.
1. The Federal Government put forward the view that a fresh reference to the European Court was not permissible since it would put at issue the binding effect of the preliminary ruling already given. That binding effect, which applies to all national courts concerned with the main action, also ex-tends to the Federal Constitutional Court as regards both a reference under Article 100 (1) of the Basic Law and an appeal on constitutional grounds. In view of the binding effect the Federal Supreme Administrative Court was not requi-red to order a reference under Article 100 (1) of the Basic Law for the purposes of a fresh appeal to the European Court to be ordered by the Constitutional Court. Furthermore, such a reference was not permissible in any event, because the Supreme Administra-tive Court was not convinced of the uncon-stitutional nature of the provisions of Community Law.
2. In the view of the 8th Chamber of the Federal Supreme Social Court, the obligation to comply with subordinate Commu-nity legislation as interpreted by the European Court cannot be restricted by the fundamental rights under the Basic Law in its application in the Federal Republic. ... To that extent the Chamber regards the principles of the judgment of 29 May 1974 as superseded: in view of the increasing tendency for constitutional law positions to be made more specific and dif-ferentiated in Community law by the decisions of the European Court there is no serious danger of the protection of funda-mental rights guaranteed by constitutional law being under-mined in its essence. So long as that essence is protected in Community law the internal obligation to adhere to Community law in particular cases cannot be denied.
The same applies (according to the 8th Chamber) to the ob-jections under procedural law: if no fundamental rights under the Basic Law can be relied on to oppose the rules of Com-munity law as interpreted by the European Court when applied in the Federal Republic, the same must apply to fundamental procedural law rights in relation to the proceedings that led to such an interpretation. In its procedure the European Court is only bound by its own procedural rules. In the same way the precondition of 'correctness and clarity' derived by the appel-lant from the observation in the judgment at BVerfGE 52, 187 (201), to which the obligation of the national court to follow the European Court's judgment is supposed to be subject, does not produce any other result, for, according to the 8th Cham-ber, that passage in the judgment was not setting up any pre-condi-tion for the binding effect of the preliminary ruling; it was only dealing with the case in which the European Court's respon-se does not fully answer the legal question relevant to the decision.
3. a) The 10th Civil Chamber of the Federal Supreme Court,citing the relevant decision of the European Court (MILCH-, FETT- UND EIERKONTOR GmbH v. HAUPTZOLLAMT SAARBRÜCKEN [29/68])stated that the national court is entitled to seek a fresh preliminary ruling from the European Court in the same main action if the first ruling has not sufficiently clarifid the question referred. In accordance with the principles developed by the Constitutional Court as to a fresh reference on a question already decided by it with legal effect, a further reference to the European Court comes into consideration not only in cases where the preliminary ruling lacks sufficient clarity; it is also proper where the reference of an unaltered question is based on new facts which appear likely to produce a finding by the latter Court which diverges from the earlier ruling.
Under those conditions, however, no occasion has arisen in the present action (according to the 10th Civil Chamber) which is sufficient for a renewed reference to the European Court.
b) The 10th Civil Chamber also argues that there was no occasion for a reference to the Federal Constitutional Court under Article 100 (1) of the Basic Law: the Federal Supreme Administrative Court pointed out correctly that such procee-dings are basically concerned with control of the legislature and not of the courts. It is true that this Court has held such a reference to be permissible and necessary (BVerfGE 37, 271) if the referring court, after obtaining a preliminary ruling from the European Court, holds that the provision of Community law relevant to its decisions as interpreted by the European Court cannot be applied because and in so far as it conflicts with a fundamental right under the Basic Law. There is no need to ask whether one must continue on that footing for the future since the Federal Supreme Administra-tive Court was not obliged to make a reference under Article 100 (1) of the Basic Law even if that view is taken into account, for it is a precondition for so doing that the refer-ring court regards the rule relevant to its decision as uncon-stitutional, in other words, that it has a conviction to that effect and not that it may merely entertain doubts or misgi-vings. The evident conclusion from the total context of the reasons for its decision is that the Supreme Administrative Court did not have any doubt as to the constitutionality of the relevant provisions of subordinate Community legislation as interpreted by the European Court.
The appeal on constitutional grounds is admissible but is not well founded.
1. A finding of a breach of Article 100 (1), second senten-ce, of the Basic Law in conjunction with Article 177 (3) ECC by the judgment at issue presupposes that the Federal Ad-minis-trative Court was obliged to make a fresh reference to the Eu-ropean Court in spite of the latter Court's preliminary ruling of 6 May 1982 made as a result of the order for a refe-rence by the former court. The refusal of a reference based on such an obligation would conflict with Article 101 (1), second senten-ce, of the Basic Law if the European Court was a statu-tory court within the limits of that provision and the refu-sal was based on arbitrary considerations.
a) The European Court is a statutory court in the meaning of Article 101 (1), second sentence, of the Basic Law; this question, not hitherto decided by the Federal Con-stitu-tional Court (see BVerfGE 29, 198 ) must be answered in the affirmative.
aa) In view of the extensive institutional guarantees which are present (see Articles 165-168 and 188 EEC, Articles 2 etseq. and 17 et seq. of the Protocol on the Statute of the Court of Justice of the European Economic Community of 17 April 1957 [II BGBl.1146] and the Rules of Procedure of the Court of Justice of the European Communities of 4 December 1974 in the codified version of 15 February  O.J. C 39/91), there can be no doubt of the European Court's character as a court within the meaning of Article 101 (1), second sentence, of the Basic Law. The Court is a sovereign organ of judicature esta-blished by the Community Treaties which, on the basis and wi-thin the framework of a legally established jurisdiction and procedures, in principle, makes final decisions in a state of judical independence on legal questions in accordance with le-gal rules and legal standards. Its members are subject to obli-gations of independence and impartiality; their legal sta-tus is so constituted by law as to offer guarantee of per-sonal in-depedence. The Court's procedural rules satisfy the due pro-cess requirement of a state subject to the rule of law; in par-ticu-lar they guarantee the right to be heard, opportuni-ties for initiating and defending litigation which are appro-priate to the subject matter of the proceedings, and freely chosen ex-pert assistance (see also BVerfGE 59,63 [91 ff.]).
bb) The European Court is not an institution of the Federal Republic of Germany but a common institution of the European Communities. The functional interlocking of the jurisdiction of the European Communities with those of the member states, together with the fact that the Community Treaties, by virtue of the instructions on the application of law given by the ratification legislation under Articles 24 (1) and 59 (2), first sentence, of the Basic Law, and the subordinate law passed on the basis of the Treaties are part of the legal or-der which applies in the Federal Republic and have to be ad-hered to, interpreted and applied by its courts, give the European Court the character of a statutory court within the meaning of Article 101 (1), second sentence, of the Basic Law in so far as the legislation ratifying the Community Trea-ties confers on the Court judicial functions contained ther-in. Those functions include in particular the Court's juris-diction to give preliminary rulings under Article 177 ECC.
Article 177 ECC accords the Court of Justice the conclusive authority in relation to the courts of member states to make decisions on the interpretation of the Treaty and on the vali-dity and interpretation of instruments of Community law deri-ved therefrom (BVerfGE 52, 187 ). That judicial monopoly for the European Court as regards the treaty (embodied for the purposes of Community law in Article 177 ECC) gives it the cha-rac-ter, to the extent, of a statutory court within the limits of Article 101 (1), second sentence, of the Basic Law.
This partly functional incorporation of the European Court into the jurisdictions of member states expresses the fact that the legal orders of member states and the legal order of the Commu-nity are not abruptly juxtaposed in a state of mutual insula-tion but are in numerous ways related to each other, in-tercon-nected and open to reciprocal effects (see e.g. Article 215 (2) ECC and the reference therein to 'general principles common to the laws of the member states'). This becomes parti-cularly clear in the allocation of jurisdiction under Article 177 oriented towards co-operation between the courts of member states and the European Court. In the interests of the Trea-ty objectives of integration, legal security and unformity of application, it serves to bring about the most uniformly pos-si-ble interpretation and application of Community law by all courts within the sphere of application of the ECC Treaty (see the European Court judgments in Hoffmann La Roche AG v. Cen-tra-farm [107/76]).
cc) This conclusion is in harmony with the international law obligation on the Federal Republic of Germany arising un-der Article 5 (1) EEC to take all appropriate measures to ful-fil the obligations arising out of the EEC Treaty: in so far as they follow from Article 177 they are to be implemented by the courts and it is for the member states themselves to gua-rantee adherence to them. This objective is served in an espe-cially apt way by the inclusion of the European Court, within the framework of its jurisdiction under Article 177 EEC, in the sphere of application of Article 101 (1), second sentence, of the Basic Law.
dd) Classification of the European Court as a statutory court according to Article 101 (1), second sentence, of the Basic Law in the matter of preliminary rulings under Article 177 ECC is not prevented by the fact that a reference under Article 177 constitutes an objective interim procedure in which the parties to the main action have no right of appli-cation of their own and which primarily serves the purpose of interpreting, implementing and reviewing the validity of Commu-nity law. An application to the European Court under Article 177 for a ruling forms part of uniform legal dispute, for the outcome of which the answering of the question referred to (in so far as relevant) is decisive. The right of an indivi-dual involved in the main action to demand implementation of the guarantees contained in Article 101 (1), second sentence, of the Basic Law also extends to the observation of the duty, esta-blished by Article 177 EEC, to institute proceedings for a ru-ling regardless of the legal nature of the proceedings and the rules which constitute its substance.
b) The Federal Administrative Court did not act arbitrarily in refusing in this case to make a fresh reference to the Euro-pean Court.
aa) The European Court had already given a preliminary ru-ling in the same originating action following a reference by the Federal Administrative Court. The subject matter of its decision concerned the same legal issues, namely the validity of Commission Regulations 1412/76 of 18 June 1976 and 2284/76 of 21 September 1976, in respect of which the appellant deman-ded a fresh reference. The Federal Administrative Court was not obliged to refer the question a second time. Judgments made by the European Court in accordance with Article 177 EEC are binding on all courts of member states dealing with the same main action (European Court judgment in Milch-, Fett- und Eierkontor v. Hauptzollamt Saarbrücken [29/68]); in so far as they are relevant to the decisions of those courts they are to be used as a basis for deciding the main action. That follows from the meaning and purpose of Article 177 and 164 EEC (see BVerfGE 45, 142 ; 52, 187 ).
bb) There is an exception to such a binding effect accor-ding to the above mentioned judgment of the European Court in cases where its judgment lacks clarity. With regard to the European Court's preliminary ruling in the present action the Federal Supreme Administrative Court considered whether it was dealing which such a case. It answered the question in the ne-gative. The view it took is in no way arbitrary.
cc) We are not concerned with deciding in the present case whe-ther the basic binding effect of preliminary rulings of the European Court also ceases to apply if, after the ruling is gi-ven, new facts become known which might possibly lead to a dif-ferent decision by the Court, or whether only the procedure for reapplication under Article 41 of the Statute of the Court would be relevant; the appellant has not alleged any such facts.
dd) It is not necessary for present purposes to decide whe-ther under the provisions of Community law the possibility was open to the Supreme Administrative Court, having regard to any possible failure on the part of the European Court to take account of or adequately to appraise the submissions of the appellant in the Article 177 proceedings, to commence fresh reference proceedings from the viewpoint of the right to a le-gal hearing. In the judgment of the Supreme Administrative Court, which was in no way arbitrary, there were no factors which could give rise to the supposition that the European Court failed to direct its attention to the appellant's sub-mission or to give it due consideration. The requisite condi-tions therefore do not exist for a fresh reference under Arti-cle 177, the refusal of which, in so far as it was permissi-ble, or possibly even required, under the provisions of Commu-nity law, could constitute a breach of Article 101 (1), second sen-tence, of the Basic Law.
c) On those grounds, at any rate, there is no question in the present proceedings, which involve an appeal on constitu-tional grounds, of a reference of the questions by the Federal Supre-me Administrative Court to the European Court.
d) Furthermore, the Supreme Administrative Court did not contravene Article 101 (1), second sentence, of the Basic Law by reason of its refusal to make a reference to the Con-stitutional Court under that Article in order to occasion the European Court to change its preliminary ruling by way of a reference by the Constitutional Court under Article 177. A re-ference to the Constitutional Court with that end in mind would have been inadmissible; the subject matter of procee-dings under Article 100 (1) of the Basic Law is the con-stitutionality of legislation and not of court judgments.
2. There was no contravention of Article 103 (1) of the Basic Law.
a) The appellant's objection, that the European Court denied it the right to a legal hearing in the proceedings for a pre-liminary ruling and that for constitutional reasons it there-fore could not bind the Supreme Administrative Court by its ruling, is inadmissible. The appellant is not alleging circum-stances which would show that in its method of procedure in giving the preliminary ruling under Article 177 EEC the Euro-pean Court refused in general to accord the parties to the original proceedings a measure of legal hearing sufficient to satisfy the minimum rule of law requirements of due legal pro-cess and that it simply and generally disregarded or failed to take into account the guarantees in its statute and rules of procedure corresponding to those requirements. The infringe-ment alleged by the appellant in this case, even if it should be true, does not allow that general conclusion to be drawn.
Only if there were that sort of general denial of a legal hearing on the part of the European Court could consideration be given, in view of the requirements of principle imposed by the Basic Law as a condition for the transfer of sovereign rights under Article 24 (1) Basic Law (see BVerfGE 37, 271 ; 58, 1[28, 40]), to questioning the continued validity under the Basic Law of the Acts of Accession to the Community Trea-ties, and therefore the binding effect of preliminary rulings of the European Court, from the standpoint of infringement of the right to a legal hearing (see also II. 1 and 2 below).
b) The Supreme Administrative Court itself clearly took no-tice of the appellant's submissions and took them into account in reaching its decision; there is therefore no question of a contravention of Article 103 (1) of the Basic Law. Nor was the court obliged for constitutional reasons, as explained, to provide the appellant with the legal hearing before the Euro-pean Court which it was allegedly denied by making a fresh re-ference to the Court.
3. Article 19 (4) of the Basic Law was not infringed by the judgment of the Federal Supreme Administrative Court:
a) Instruments incorporating judicial decisions of the kind here at issue do not fall within the term 'public powers' for the purposes of that Article (see BVerfGE 49, 329 [340ff.]).
b) Nor is the appeal on constitutional grounds well founded if it is understood in the sense that the appellant regards it as an infringement of Article 19 (4), first sentence, of the Basic Law, that remedies are not available from the German courts against judgments of the European Court in proceedings for a preliminary ruling under Article 177.
This Court has already held on several occasions that Arti-cle 19 (4) of the Basic Law does not confer subsidiary juris-diction on German courts or give them international com-petence to intervene against decisions of international courts (BVerfGE 58, 1 [28ff.] with further references); the same applies to decisions of the European Court.
c) Nor was there a breach of Article 19 (4), first sentence of the Basic Law by reason of the Supreme Administrative Court considering itself bound by the preliminary ruling of the European Court.
aa) It is true that Article 19 (4), first sentence, of the Basic Law requires the provision of a legal system of re-course to the courts, which guarantees a comprehensive consi-deration of the factual and legal aspects of the subject-mat-ter of the proceedings, as well as a form of decision and means of implementing it appropriate to the particular demand for protection of rights, by an independent and impartial organ of judicature (BVerfGE 60, 253 [296f.]); disregarding possible circumstantial effects and the scope for appraisal, formulation or discretion on the part of the legislative or executive authority, this in principle, excludes any binding obligation on courts to adhere to factual or legal judgments of a particular case by other bodies. But this does not exclu-de an obligation provided for by legal rules to adhere to the decisions of other courts (see BVerfGE 65, 132 [137ff.]); be-cause of its functional jurisdiction under Article 177 EEC, in respect of which there are no constitutional doubts, the same also applies to the binding effect of preliminary rulings of the European Court.
bb) The question whether there is sufficient provision for the protection of legal rights before the European Court could only be significant in relation to a possible infringement of Article 24 (1) of the Basic Law by the Act of Accession to the EEC Treaty if the constitutional principle of the rule of law, which has to be respected in the event of transfer of sove-reign rights under Article 24 (1), required a right of appeal to be given against preliminary rulings of the European Court.
This Court has consistently held that neither Article 19 (4) nor Article 103 (1) of the Basic Law nor the general principle of the rule of law requires there to be an additio-nal recourse to domestic (German) courts of further instance (see BVerfGE 34, 1 ; 42, 243 ; 42, 252 ; 49, 329; 54, 277 [291l]). From that viewpoint the present orga-nization of the procedure for a preliminary ruling from the European Court does not fail to adhere to the restrictions laid down in the Basic Law on the transfer of sovereign rights.
It cannot be held that the judgment of the Federal Admi-nistrative Court at issue infringed the appellant's fundamen-tal rights under Articles 12 (1) and 2 (1) in conjunction with Article 20 (3) of the Basic Law (principles of proportio-nality and legal certainty).
1. The appellant's complaints, that the European Court's ru-ling and Commission Regulations 1412/76 and 2284/76 as inter-preted by that Court infringed the fundamental rights under the Basic Law and therefore ought not to have been applied by German authorities or courts during the period in question within the sphere to which the Basic Law applies, are inad-missible; a reference of the regulations to this Court by the Supreme Administrative Court under Article 100 (1) ofthe Basic Law would have been inadmissible.
a) Article 24 (1) of the Basic Law makes it possible to open up the legal system of the Federal Republic of Germany in such a way that the Federal Republic's exclusive claim to con-trol in its sphere of sovereignty can be withdrawn and room can be given for the direct validity and application of a law from another source within that sphere of the sovereignty (see BVerfGE 37, 271 ; 58, 1 ; 59, 63 ). It is true that Article 24 (1) of the Basic Law does not itself pro-vide for the direct validity and application of the law esta-blished by the international institution, nor does it directly regulate the relationship between such law and domestic law (for example, the question of the priority of their respective application). Internal validity and application, as well as the possible internal priority of validity or application of inter-national treaties (including those of the sort at issue here), do not follow directly from general international law. Current international law does not contain any general rule arising out of the agreed practice of states or undoubted legal accep-tance to the effect that states are obliged to incorporate their treaties into their domestic law and to accord them thereunder priority of validity or application as against the national law. Internal priority of validity or ap-plication only arises by virtue of an applications of law in-struction to that effect under the national law, and that ap-plies, too in the case of treaties, the content of which obli-ges the parties to provide for internal priority of validity or application. Article 24 (1), however, makes it possible co-n-stitutionally for treaties which transfer sovereign rights to international institutions and the law established by such in-stitutions to be accorded priority of validity and application as against the national law of the Federal Republic by the ap-pro-priate internal application of law instruction. That is what took place in the case of the European Community Treaties and the law established on their basis by the Community organs by the passing of the Acts of Accession to the Treaties under Ar-ti-cles 24 (1) and 59 (2), first sentence, of the Basic Law. From the application-of-law instruction of the Act of Acces-sion to the EEC Treaty, which extends to Article 189 (2) EEC, arises the immediate validity of the regulations of the Commu-nity for the Federal Republic and the precedence of their appli-cation over national law.
b) The power conferred by Article 24 (1) of the Basic Law, however, is not without limits under constitutional law. The provision does not confer a power to surrender by way of ce-ding sovereign rights to international institutions the iden-tity of the prevailing constitutional order of the Federal Re-public by breaking into its basic framework, that is, into its very structure. That applies in particular to le-gislative in-struments of the international institution which, perhaps as a result of a corresponding interpretation or development of the underlying treaty law, would undermine essen-tial, structural parts of the Basic Law. An essential part which cannot be dis-pensed with and belongs to the basic frame-work of the consti-tutional order in force is constituted in any event by the le-gal principles underlying the provisions of the Basic Law on fundamental rights (see BVerfGE 37, 271 ; 58, 1 [30 f.]). Article 24 (1) of the Basic Law, subject to conditions, allows these legal principles to be treated according to context. In so far as sovereign power is accorded to an international in-stitution within the meaning of Article 24 (1) which is in a position within the sovereign sphere of the Federal Republic to encroach on the essential content of the fundamental rights recognized by the Basic Law, it is necessary, if that entails the removal of legal protection existing under the terms of the Basic Law, that instead, there should be a guarantee of the application of fun-damental rights which in substance and effectiveness is essen-tially similar to the protection of fun-damental rights requi-red unconditionally by the Basic Law. As a general rule this will require a system of protection of in-dividual rights by independent courts which are given adequate jurisdiction and, in particular, power to review and decide on factual and legal questions appropriate to the relevant claim to protection of rights, and by courts which reach their deci-sions on the basis of a proper procedure allowing the right to a legal hearing and providing for means of attack or defence appropri-ate to the subject matter of the dispute and for the availabi-lity of freely chosen expert assistance, and the deci-sions of which, if necessary, contain adequate and effective sanctions for the infringement of a fundamental right.
c) This Court explained in its judgment of 29 May 1974 (see BVerfGE 37, 271 [280ff.]) that, having regard to the state of integration which had been reached at that time, the standard of fundamental rights under Community law, generally binding within the European Communities, did not yet show the level of legal certainty for the Court to conclude that that standard would permanently satisfy the fundamental rights standards of the Basic Law, without prejudice to possible modifications, in such a way that the limits imposed by Article 24 (1) of the Basic Law on the application of derived Community law within the sovereign area of the Federal Republic would not be trans-gressed. It said that the Community still lacked a par-liament legitimized by direct democratic means and established by ge-neral suffrage, which possessed legislative powers and to which the Community institutions competent to issue legisla-tion were politically fully responsible; in particular, the Community still lacked a codified catalogue of fundamental rights; Euro-pean Court case law, as it then stood, did not by itself guaran-tee necessary legal certainty. So far as that legal certainty remained unachieved in the course of subsequent integration, the reservation derived from Article 24 remained in force. This Court accordingly held in the above mentioned judgment: as long as the integration pro-cess has not progressed so far that Com-munity law also recei-ves a catalogue of fundamental rights de-cided on by a parlia-ment and of settled validity which is ade-quate in comparison with the catalogue of fundamental rights contained in the Basic Law , a reference by a court in the Fe-deral Republic of Germany to the Federal Constitutional Court in judicial review procee-dings after obtaining a ruling of the Euro-pean Court under Article 177 of the Treaty is admissible and neces-sary if the German court regards that rule of Commu-nity law which is relevant to its decision in the interpreta-tion given by the European Court to be inapplicable in the interpreta-tion given by the European Court because and in so far as it con-flicts with one of the fundamental rights in the Basic Law (BVerfGE 37, 271 ). In the case in question it held the reference under Article 100 (1) of the Basic Law to be ad-missible but, in the circumstances, not to be well foun-ded.
In its decision of 25 July 1979 (BVerfGE 52, 187 [202f.]), this Chamber expressly left open the question whether, or to what extent (having regard to political and legal developments which might take place in the meantime in European Community matters), the principles laid down in the judgment of 29 May 1974 could continue to claim unrestricted validity in relation to future reference of rules of derived Community law.
d) In the judgment of this Chamber a measure of protection of fundamental rights has been established in the meantime within the sovereign jurisdiction of the European Communities which in its conception, substance and manner of implementa-tion is essentially comparable with the standards of fundamen-tal rights provided for in the Basic Law. All the main insti-tutions of the Community have since acknowledged in a legally significant manner that in the exercise of their powers and the pursuit of the objectives of the Community they will be guided as a legal duty by respect for fundamental rights, in particular as established by the constitutions of member states and by the European Convention on Human Rights. There are no decisive factors to lead one to conclude that the standard of fundamental rights which has been achieved under Community law is not adequately consolidated and is only of a transitory nature.
aa) This standard of fundamental rights has in the mean-time, particularly through the decisions of the European Court, been formulated in content, consolidated and adequatelyguaranteed.
In the early years the European Court refused to investi-gate accusations by parties that decisions of the High Autho-rity had infringed principles of German constitutional law and, in particular, Articles 2 and 12 of the Basic Law (Stork v.High Authority [1/58]); it stated that it had no authority to ensure respect for rules of domestic law in force in one or other member state, even if they involved principles of con-stitutional law, and explained that 'Community law as it ari-ses under the European Coal and Steel Community Treaty does not contain any general principle, express or otherwise, gua-ranteeing the maintenance of vested rights (President etc. v. High Authority [36--38/59 and 40/59]). In the following period the European Court made it clear that the general principles of Community law, the maintenance of which it was bound to protect, included the fundamental rights of the individual (see Stauder v. City of Ulm [29/69]). It is true that in the INTERNATIONALE HANDELSGESELLSCHAFT case (INTERNATIONALE HANDELSGESELLSCHAFT [11/70]) it held that the validity of a Community measure or its effect within a particular member state could not be affected by an allegation that it ran coun-ter to fundamental rights as formulated by the constitution of the member state or to the principles of its constitutional structure; it would still have to consider, however, whether an analogous guarantee under Community law had been disregar-ded, for the safeguarding of fundamental rights formed part of the general principles of law which the Court had to protect. Whilst the protection of such rights must be supported by the constitutional traditions of the member states, they must also operate within the structure and objectives of the Community.
The European Court took the essential step (from the view-point of the Basic Law) in its judgment in the NOLD case (J. NOLD KG v. E.C. Commission [4/73]) where it stated that in relation to the safeguarding of fundamental rights it had to start from the common constitutional tradition of the member states: 'it cannot therefore allow measures which are incom-patible with fundamental rights recognized and guaranteed by the constitutions of those states'.
On the legal basis of the general principles of Community law thus defined and given that content, the European Court in the period that followed cited fundamental rights, as recogni-sed in the constitutions of member states, as obligatory stan-dards for reviewing measures of Community organs taken within their spheres of jurisdiction. Side by side with the express guarantees of liberties contained in the Community Treaties themselves (see e.g. Articles 7, 48 et seq., 59 et seq. and 67 et seq. EEC) the foreground was occupied naturally by the fun-damental rights and freedom relating to economic activities, such as the right to property and freedom to pursue economic activities (see NOLD [above]; Hauer v. Land Rheinland-Pfalz [44/79]). In addition to that it cited other basic rights, such as freedom of assiciation, the general principle of equal treatment and the prohibition of arbitrary acts, religious freedom or the protection of the family, as standards of assessment (see UNION SYDICALE v. E.C. Council [175/73]; Ruck-deschel [117/76 and 16/77]).
The European Court has generally recognized and consistent-ly applied in its decisions the principles, which follow from the rule of law, of the prohibition of excessive action and of proportionality as general legal principles in reaching a balance between the common interest objectives of the Communi-ty legal system and the safeguarding of the essential content of fundamental rights (More recent examples are the judgments in: INTERNATIONALE HANDELSGESELLSCHAFT [above]; HAUER [above]; TESTA v. BUNDESANSTALT FÜR ARBEIT [41, 121 and 796/79]; HEIJN [94/83]; FEARON v. IRISH LAND COMMISSION [182/83]; ALTOLE [240/83]; compare M. Hilf in EuGRZ 1985, 647 at 649). It has recognized the prohibition of retrospection as an emanation of the basic principle of legal certainty and has recognized the rule against double penalties (see RACKE [98/78]; REGINA v. KENT KIRK [63/83]; BOEHRINGER [7/72]) and likewise the obliga-tion under the rule of law to state reasons for individual de-cisions (see INTERMILLS v. E:C: COMMISSION [323/82]; NETHER-LANDS v. E:C: COMMISSION [296 and 318/82]; M. Hilf, loc. cit on p. 650). In JOHNSTON v. THE CHIEF CONSTABLE OF THE ROYALULSTER CONSTABULARY (Case 222/84) the Court, having recourse to the constitutional traditions common to all member states and to Article 13 of the European Human Rights Convention, categorized the claim to effective judicial protection for the safeguarding of personal rights as a constituent part of the guarantees for fundamental rights under Community law. It re-garded the duty to grant a legal hearing as an essential requi-rement of a fair procedural system (see PECASTAING v. BELGIAN STATE [98/79]).
For the purposes of defining under Community law the con-tent and extent of fundamental rights, the Court has also refer-red to the European Human Rights Convention and its additio-nal protocol see RUTILI (36/75).
bb) The European Parliament, the Council and the Commission of the Community adopted the following joint declaration on 5 April 1977 (O.J. 1977, C 103/1):
The European Parliament, the Council and the Commission,
Whereas the Treaties establishing the European Com-munities are based on the principle of respect for the law;
Whereas, as the Court of Justice has recognized, that law comprises, over and above the rules embodied in the Treaties and secondary Community legislation, the general principles of law and in particular the fundamental rights, principles and rights on which the constitutional law of the member states is based;
Whereas, in particular, all the member states are Contracting Parties to the European Convention for the protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950,
have adopted the following declaration:
1. The European Parliament, the Council and the Commission stress the prime importance they attach to the protection of fundamental rights, as derived in particular from the constitutions of the member states and the European Convention for the Protec-tion of Human Rights and Fundamental Freedoms.
2. In the exercise of their powers and in pursuance of the aims of the European Communities they respect and will continue to respect these rights.
The European council adopted a declaration on democracy on 7/8 April 1978; it reads as follows:
The election of the Members of the Assembly by direct universal suffrage is an event of outstanding importance for the future of the European Communi-ties and a vivid demonstration of the ideals of democracy shared by the people within them.
The creation of the Communities, which is the foundation of ever closer union among the peoples of Europe called for in the Treaty of Rome, marked the determination of their founders to strengthen the protection of peace and freedom.
The Heads of State and of Government confirm their will, as expressed in the Copenhagen Declara-tion the European identity, to ensure that the cherished values of their legal, political and moral order are respected and to safeguard the principles of representative democracy, of the rule of law, of social justice and of respect for human rights.
The application of these principles implies a political system of pluralist democracy which guarantees both free expression of opinions within the constitutional organization of powers and the procedures necessary for the protection of human rights.
The Heads of State and of Government associate themselves with the Joint Declaration by the Assem-bly, the Council and the Commission whereby these institutions expressed their determination to respect fundamental rights in pursuing the aims of the Communities.
They solemnly declare that respect for and main-tenance of respresentative democracy and human rights in each member state are essential elements of membership of the European Communities.
e) Compared with the standard of fundamental rights under the Basic Law it may be that the guarantees for the protec-tion of such rights established thus far by the decisions of the European Court, since they have naturally been developed case by case, still contain gaps in so far as specific legal prin-ciples recognized by the Basic Law or the nature, con-tent or extent of a fundamental right have not individually been the object of a judgment delivered by the Court. What is decisive,nevertheless, is the attitude of principle which the Court maintains at this stage towards the Community's obliga-tions in respect of fundamental rights, to the incorporation of funda-mental rights in Community law under legal rules and the legal connection of that law (to that extent) with the constitutions of member states and with the European Human Rights Conven-tion, as is also the practical significance which has been achieved by the protection of fundamental rights in the mean-time in the Court's application of Community law. Although the above mentioned declarations of the institutions of the Euro-pean Community and of the European Council may lack the formal character of Treaty law and though the Community as such is not a party to the European Human Rights Convention, those in-struments are both internal to the Community and of legal sig-nificance as regards the relationship of the Communi-ty with its member states: they testify formally to the agreed legal view of the states party to the Treaty and of the Commu-nity institutions with regard to the Community's obligation to gua-rantee fundamental rights as they result from the consti-tutions of the member states and, by virtue of being general legal prin-ciples, attain validity as primary Community law; by their un-animous testimony to an intention as regards the appli-cation of the Community Treaties in practice, they are also of legal significance under international law for the definition of the content of the Treaties. The declarations also rein-force the European Court's jurisdiction and obliga-tion to ensure the pro-tection under Community law of these fundamental rights and the legal principles which they entail in accor-dance with its rules of procedure. Those rules of procedure, in relation to access to the Court, the given types of pro-cedures, the powers of the Court to review and make decisions, the procedural prin-ciples and the effect of its decisions, are organized in a way which, in general, guarantees effective protection of fundamen-tal rights which is to be regarded as substantially similar to the unconditional protec-tion of fun-damental rights under the Basic Law.
By virtue of the connection, through legal rules as ex-plai-ned above of the guarantees of fundamental rights con-tained in the constitutions of member states and in the Euro-pean Human Rights Convention, with the general principles of Community law, the requirement of a catalogue of fundamental rights decreed by a parliament, which was regarded as neces-sary by this Chamber in its judgment of 29 May, has also been satis-fied in all, the circumstances. In the first place, since 1974 all the original member states of the Community (like those which acceded later) have acceded to the European Human Rights Convention, and their respective parliaments have appro-ved their accession; in the second place, the common declara-tion of 5 April 1977, which was also adopted by the European Parlia-ment, can be judged from the viewpoint of the require-ment to be a sufficient parliamentary recognition of a for-mulated cata-logue of effectively operating fundamental rights. Whilst this Chamber in its judgment of 29 May 1974 observed that the Commu-nity lacked a parliament legitimized by direct and democratic means and established by general suffra-ge which possessed legis-lative powers and to which the insti-tutions competent to issue legislation were politically fully respon-sible, that was an element in the description of the state of integration as it appeared at that time; the basis for that finding was clearly the consideration that protection of fun-damental rights has to begin as early as the stage of law--making and parliamentary responsibility provides a suitable protective arrangement for that purpose. There was no inten-tion, however, of laying down a constitutional requirement that such a position must have prevailed before there could be any possibility of the with-drawal of the Federal Constitutio-nal Court's jurisdiction over derived Community law in pro-ceedings by way of review of legis-lation under Article 100 (1) of the Basic Law.
Nor is it to be expected in view of the state of European Court case law achieved at the present stage that a decline in the standards of fundamental rights under Community law might result through the legal connection of Community law with the constitutions of member states to an extent that makes it im-possible on constitutional grounds to regard a reasonable pro-tection of fundamental rights as being generally available. In the first place, the Court is not obliged to determine the ge-neral principles of Community law according to the lowest com-mon denominator derived from a comparison of the constitutions of member states, even if such deep differences between their Basic Laws exist at all or do arise in the future. It is to be expected rather that the European Court will strive to ensure the best possible development of any particular principle of fundamental rights in Community law. In the second place, the taking into account for legal purpo-ses of the European Human Rights Convention, together with the now extensive case law of the European Court in favour of human rights, guarantees a mi-nimum standard of substantive protection of fundamental rights which, in principle, satisfies the legal requirements of the Basic Law as such. That posi-tion is not altered by the fact that the Community as such is not a party to the European Hu-man Rights Convention.
The fact that at Community level questions of a diffe-rent nature arise in certain circumstances in connection with the regulation of fundamental rights or the practical defini-tion of the extent to which they are protected does not, in gene-ral, impair the adequacy of the protection of fundamental rights provided by Community law from the point of view of the Basic Law. In regard especially to the objectives laid down in the Community treaties, which for their part are compatible with the Basic Law, questions of balance will arise in this connection involving Treaty and common interest objectives of the Community which will not arise, at least directly, in the same way at member state level. Furthermore, the fundamental rights safeguarded by the Basic Law take their place in a con-stitutional framework as a body of rules representing a uni-fied purpose and are accordingly to be interpreted and applied in harmony and co-ordination with other legal inter-ests con-ferred or recognized thereby. They include the belief, expres-sed in the preamble forms, of supra national co-opera-made pos-sible under Article 24 (1). Under the Basic Law, therefore it is also possible to have legal provisions at Com-munity level which protect fundamental rights in accordance with the objec-tives and special structures of the Community; the substantive content of the fundamental rights and, indeed, of human rights on the other hand is unconditional and must continue in existen-ce in face of the sovereign powers of the Community as well. This Chamber holds that requirement to be adequately guaran-teed in general at the present stage at Com-munity level.
f) In view of those developments it must be held that, so long as the European Communities, in particular European Court case law, generally ensure effective pro-tection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substan-tially similar to the protection of fundamental rights required un-conditionally by the Basic Law, and in so far as they ge-nerally safeguard the essential content of fundamental rights, the Federal Constitutional Court will no longer exer-cise its jurisdiction to decide on the appli-cability of secon-dary Com-munity legislation cited as the legal basis for any acts of German courts or authorities within the sovereign jurisdiction of the Federal Republic of Germany, and it will no longer re-view such legislation by the standard of the fun-damental rights contained in the Basic Law; references to the Court under Article 100 (1) for that purpose are there-fore inadmis-sible.
g) The question must, therefore, remain unanswered whether the appellant is correct in its accusation that the disputed Commission regulations in the interpretation given by the European Court infringe its fundamental rights as recognized in Article 12 (1) and 2 (1) in conjunction with Article 20 (3) of the Basic Law. It does not appear either from the appel-lant's submissions or from the preliminary ruling of the Euro-pean Court that the Court under its interpretation of the law is in general simply not prepared or not in a position to recognize or protect the fundamental rights claimed by the appellant and that, therefore, the degree of protection of such rights required by the Basic Law has in general clearly not been reached at the level of Community law. For those reasons the present case does not give any occasion to consider a review of the disputed Commission regulations in respect of their compatibility with fundamental rights under the Basic Law. A reference of the Commission regulations under Article 100 (1) by the Federal Supreme Administrative Court in the main action would, therefore, have been inadmissible.
2. The appellant has not alleged, nor is there any evidence of any independent contravention by the judgment of the Fede-ral Supreme Administrative Court of the constitutional rights which it claims would not be covered by the binding effects on that court of the European Court's preliminary ruling.
This judgment has been reached unanimously.
Judges: Zeidler, Dr.Dr. h.c. Niebler, Steinberger, Träger, Mahrenholz, Böcken-förde, Klein, Graßhof
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