How To Make Courts Refer Cases Even If They Don’t Want To

How do you translate “Europäischer Verfassungsgerichtsverbund“? This humungous term is a creation of Andreas Voßkuhle, the president of the FCC. It denotes the joint effort of the FCC, the ECJ and the ECHR to cooperate and respect each other’s contribution to European right protection.

Today’s decision by the FCC (First Senate) seems to be a paragon of what this “Verfassungsgerichtsverbund” means in practice:

A financial court had doubts about the constitutionality of a law about government aids. It called upon the FCC to decide about that issue according to Art. 100 I GG. The thing was, the contested part of the law was a direct transposition of a EU directive, without any margin of appreciation for the national legislators. In that case the FCC has, according to Solange II, no jurisdiction: It is for the ECJ to decide if that law infringes fundamental rights or not.

That is all well known, so far. The new part about today’s decision is this: Whether or not the directive leaves a margin of appreciation in its transposition has to be absolutely clear before a court can refer a case to the FCC. If it isn’t sure it has to call upon the ECJ first. They have to do that, even lower-level courts – not due to European law, but due to German constitutional law. And they will get their ears twisted by the FCC if they fail to comply.

Senate scuffle

Speaking of the duty to refer to the ECJ: Wasn’t there a quarrel between the two senates about that issue?

The FCC traditionally gave courts lots of leeway in handling that duty. In the Honeywell decision the Second Senate wholeheartedly confirmed that point of view and emphasized that the FCC should not function as a “supreme referral control court” ...

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