So much Love

von Maximilian Steinbeis

In the unsentimental world of constitutional law we rarely engage in romance. But I have to say, what is going on between the ECJ and the German Federal Constitutional Court is touching my heart. That old couple, together for ages. We love them both very dearly and their horrific periodical quarrels have been such a pain to watch, and every once in a while we even came close to believing that one of them might eventually pack his stuff and move out on the other. But lo and behold: We see them tenderly united, strolling through the park hand in hand as if nothing ever happened. Now, isn’t that a happy sight! Well, best of luck to you two. You certainly are not always easy to have around and the airs you both like to give yourself from time to time would try the patience of even the saintliest lover to the utmost limit, to tell the truth. But on the whole, given that you just are who you are, I have to say: You’re doing great.

What had happened? This time, I am sorry to say, the European Court of Justice was the one who started. Some four years ago, it decided to stick it to the national constitutional courts of the EU member states in the gruffest possible way. In the notorious Melloni ruling, it told them to stuff their own national expectations about fundamental rights for criminal defendants when those rights get into the way of the mutual recognition and enforcement of EU arrest warrants. Whoo! Well, my dear, was the snippy answer from Karlsruhe, we’ll see about that! Before we extradite someone to the judiciary of another member state, we first check whether this violates his human dignity. Because human dignity is our highest constitutional value. Your Union law can’t reach it, that’s how high it is! And if you think we’re going to refer that question to you for a preliminary ruling, then keep dreaming. Human dignity, Luxemburg growled back. Human dignity, human dignity. All right, then ...

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