Cruz Villalón’s ,Gauweiler’ Opinion: Lost in Platitudes

On 14 January 2015, Advocate General Cruz Villalón delivered his Opinion in the Gauweiler case. The Opinion had been eagerly awaited, because it concerns the first reference ever for a preliminary ruling made by the German Constitutional Court (GCC), after decades of refusal to engage into direct dialogue with the ECJ. Nevertheless, it would be misguided to portray the GCC’s request for a preliminary ruling as a major turning point in its case law, heralding a new, gentler era in its relationship with the ECJ. For several reasons, which have been discussed extensively elsewhere, it seems that the preliminary reference procedure was not used for purposes of ‘judicial cooperation’ or ‘judicial dialogue’. One of those reasons is that the GCC claims for itself the last word on the legality of the impugned EU act. Even if the ECJ were to conclude that the Union had remained within the limits of its powers as laid down in the Treaties and, thus, that its action was valid, the GCC reserves to itself the right to review the action in light of Germany’s constitutional identity.

As was to be expected, the Advocate General disapproves of what he calls the GCC’s ‘reservation of identity’. His objection is twofold. First, he holds that the EU legal order would be placed in a subordinate position if domestic authorities could set aside any Union action that violates their constitutional identity. That is particularly the case, the Advocate General says, if that ‘constitutional identity’ is stated to be different from the ‘national identity’ referred to in Article 4(2) TEU. Second, the Advocate General reminds us that the constitutional traditions common to the Member States have been used by the ECJ to construct a system of values for the Union itself.

Few would disagree with the Advocate’s General observations ...

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