This section will attempt to depict the stance of the constitutional courts towards the Court of Justice. Clearly, it is impossible to detect with preci- sion how the constitutional courts truly appreciate the Court of Justice.
The only source of information available consists of comments and remarks made by these courts in their judgments, and sometimes by the judges extra-judicially. The likes and dislikes of a court are hardly ever explicit, especially for those tribunals whose judicial decisions are brief and concise. Furthermore, judges speak not only through what they say but also through what they omit. It is easy for a court to escape a situation in which it would have to give a statement on the Court of Justice. Not to
125FG Jacobs, ‘The Community Legal Order – A Constitutional Order? A Perspective from the European Court of Justice’, in Towards a New Constitution for the European Union? The Intergovernmental Conference 1996 (Kửln, 1997) 31, at 34.
refer a question to Luxembourg is easier than to refer it and then to chal- lenge or reject the answer from the European Court. Or simpler even, the court in question could ignore questions of Community law and solve the issues raised before it, purely on the basis of national law. This section will give an impression of some of the statements made en bancon the Court of Justice, its role and function.
The German constitutional court has given the Court of Justice a place in the German constitutional structure as gesetzlicher Richterin the sense of Article 101(1)(2) of the Basic Law, which provides for access to a ‘law- ful court’ as a fundamental right.126If a party is denied access to such a lawful court in an arbitrary manner, the party may bring a petition for review on constitutional grounds (Verfassungsbeschwerde) to the Bundesverfassungsgericht. In the national constitutional context, the arbi- trary failure to refer a question on the constitutionality of a measure to the Bundesverfassungsgerichtconstitutes an infringement of the right to a law- ful judge. The question whether the Court of Justice could equally be con- sidered as a lawful court in the sense of Article 101(1)(2) of the German Constitution was first raised in the case of Alphons Lütticke GmbH.127The Bundesverfassungsgerichtdid not rule on the question of whether the Court of Justice was to be regarded as a lawful judge under Article 101(1)(2) of the Basic Law. It held that the right to a lawful judge could only be infringed if the refusal to refer was arbitrary which it clearly was not in the case at hand.
In the Solange IIdecision the Constitutional Court did qualify the Court of Justice as a lawful court within the meaning of Article 101(1)(2) of the Basic Law.128‘There can be no doubt’, the Bundesverfassungsgerichtheld, ‘of
126Art. 101(1)(2) reads: ‘Niemand darf seinem gesetzlichen Richter entzogen werden’; ‘No on may be removed from the jurisdiction of his lawful judge’, translation taken from SE Finer et al, Comparing Constitutions (Oxford, Clarendon Press, 1995).
127Bundesverfassungsgericht, decision of 9 June 1971, Alphons Lütticke, BVerfGE 31, 145;
Oppenheimer, The Cases, at 415. Alphons Lütticke was involved in a long and compli- cated dispute with the tax authorities over a turnover equalisation tax on milk powder which the firm had imported from Luxembourg. The Fiscal Court of Saarland had sought and obtained a preliminary ruling from the ECJ on the interpretation of Art. 95 of the EEC Treaty and remitted the case to the local customs office. On appeal to the Bundesfinanzhof the judgment of the fiscal court was quashed and the Bundesfinanzhoffixed itself the aver- age rate of the turnover tax in deviation from the German Umsatzsteuergesetz(Turnover Tax Code). The company then lodged a complaint before the Bundesverfassungsgericht, arguing that its right to a gesetzliche Richterunder Art. 101(1)(2) GG had been infringed by the failure of the Bundesfinanzhofto make a further reference for a preliminary ruling by the ECJ pursuant to Art. 234 EC.
128Bundesverfassungsgericht, decision of 22 October 1986, Wünsche Handelsgesellschaft (Solange II), BverfGE 73, 339; [1987] 3 CMLR 225; Oppenheimer, The Cases, 461. The applicant com- pany, Wünsche, was refused a licence for the importation of mushrooms which was required under certain Commission Regulations. In proceedings before the administrative courts and finally the Federal Administrative Court (Bundesverwaltungsgericht), the ques- tion of the validity of the Regulations was referred to the ECJ Following the European Court’s decision to uphold the validity of the Commission Regulations, the applicant company argued before the Federal Administrative Court that there had been a violation
the European Court’s character as a court within the meaning of Article 101(1)(2) of the Constitution’.129The Court of Justice was a sovereign organ of the judicature established by the Community Treaties, functionally interlocked with the institutions of the Member States. This functional interlocking together with the fact that the Community Treaties were, by virtue of Articles 24(1) and 59(2)(1) of the Basic Law part of the legal order which applies in Germany, gave the European Court the character of a lawful court under Article 101(1)(2) of the Basic Law in so far as the legis- lation ratifying the Treaties confers on the Court judicial functions con- tained therein, including the conclusive authority to make decisions on the interpretation of the Treaties and on the validity of Community law derived therefrom.
The classification of the Court of Justice as a statutory court ‘trans- lates’ the Community obligations of the German courts deriving from Article 234 EC into constitutional obligations. An arbitrary refusal to refer a question for preliminary ruling to the Court of Justice of itself amounts to a violation of the German Constitution, in particular the right to a lawful court. This conclusion, the Bundesverfassungsgericht under- lined, corresponds to the international law obligation on the Federal Republic arising under Article 5(1) of the EEC Treaty (now Article 10 EC) to take all appropriate measures to fulfil the obligations arising from the Treaty. The conclusion is all the more important since there is hardly a Community law sanction of the (arbitrary) refusal of a court of final instance (or any other court for that matter) to refer a question for pre- liminary ruling to the European Court: an infraction procedure will not be instituted, and by and of itself, the failure to make a reference will not suffice for the liability of the State to be established under Kửbler.130In Germany there is now a national constitutional means to enforce the duty to refer questions for preliminary ruling, even if it is restricted to
of various constitutional rules and requested that the proceedings be suspended and that either the question should be referred to the Constitutional Court whether the relevant regulations as interpreted by the ECJ could be applied in the Federal Republic, or a fresh reference should be made to the European Court under Art. 234 EC In breach of the con- stitutional principle of a right to a hearing the ECJ had allegedly failed to appraise a large part of the arguments put forward by the parties. The Federal Administrative Court dis- missed the appeal as unfounded without making a further reference to the ECJ or the Constitutional Court, the first because the appellant had not given any occasion to doubt the correctness or clarity of the European Court’s judgment; the latter since the Basic Law gave the Constitutional Court a power of review over the Legislature, but not over courts and therefore not over the European Court either. Wünsche then brought an appeal on constitutional grounds before the Federal Constitutional Court arguing that the judg- ment of the Bundesverwaltungsgericht disregarded its procedural and substantial rights under several Articles of the Basic Law in conjunction with Art. 234(3) EC.
129Bundesverfassungsgericht, decision of 22 October 1986, Wünsche Handelsgesellschaft (Solange II), BverfGE 73, 339, under BI[4](aa), Oppenheimer, The Cases, at 477.
130Case C–224/01 Kửbler v Austrian Republic, decision of 30 September 2003, nyr in ECR.
cases of arbitrary refusal. One such instance is where a court of last resort deviates from a ruling of the Court of Justice on a particular question without making a new reference.
This is what occurred in the Kloppenburg case, where the Bundesverfassungsgericht brought an end to the ‘rebellion’ of the Bundesfinanzhofagainst the Court of Justice on the issue of the direct effect of directives. In 1981 the Bundesfinanzhofhad ruled that a directive was beyond any reasonable doubt binding on the Member States, but that it could not create directly applicable law in those States. Individuals could not therefore rely on the provisions of a directive which had not been implemented, in other words, directives lacked direct effect.131 The Federal Fiscal Court saw no reason to refer the matter to the Court of Justice under Article 234(3) EC.132The rebellion in the 1985 Kloppenburg decision133was even more blatant since the Court of Justice had already handed a preliminary ruling in the very case at hand, upon reference by the Finanzgericht Niedersachsen.134The Finanzgerichtfollowed the ruling of the Court of Justice, but on appeal the Bundesfinanzhofquashed the deci- sion and dismissed the application. The Bundesfinanzhof explained its rebellion on the basis of German constitutional law. The thrust of the argument was that the Court of Justice had transgressed the proper limits of interpretation of Article 189(3) of the EC Treaty (now Article 249 EC) and had extended the effect of directives in a way which was no longer covered by the German legislation enacting the Treaty. In other words, the Court of Justice was accused of having made an ultra viresinterpretation of the Treaty, which could not be binding on national courts. This is, in fact, an application avant la lettre, by the Bundesfinanzhof, of the Maastricht Urteilof the Constitutional Court holding that should the Court develop
131Bundesfinanzhof, decision of 16 July 1981, Kloppenburg, V B 51/80, BFHE 133, 470; [1982] 1 CMLR 527. The Bundesfinanzhof expressed its concurrence with the Cohn-Benditdecision of the Conseil d’État, decision of 22 December 1978, Cohn-Bendit, Rec. 524; [1980] 1 CMLR 543. As the reader will be aware, the Court of Justice had held in 1974 that directives could, under specific conditions, be relied upon by individuals before their national courts,Case 41/74 Van Duyn v Home Office [1974] ECR 1337. Due to the peculiarities of the French system of constitutional review, the Conseil constitutionnelcould not play a simi- lar role as arbiter between the Conseil d’Étatand the Court of Justice in the parallel rebel- lion of the Conseil d’Étatin the case of the direct effect of directives.
132Exactly the same question on the direct effect of art. 13 B (d) 1 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turn-over tax, [1977] OJ L 145/1 was already pending before the Court of Justice upon reference by the FinanzgerichtMünster,Case 8/81 Ursula Becker v Finanzamt Münster-Innenstadt [1982] ECR 53, decided on 19 January 1982.
133Bundesfinanzhof, decision of 25 April 1985, Kloppenburg, V R 123/84, BFHE 143, 383; [1989]
1 CMLR 873, see comments Th Stein, CML Rev,1986, 727; X, ‘The Bundesfinanzhof rebels again’, ELR, 1985, 303; Chr Tomuschat, ‘Nein, und abermals Nein! Zum Urteil des BFH vom 25. April 1985’, EuR, 1985, 346; G Meier, ‘Krieg der Richter – Was nun?’, RIW, 1985, 748.
134Case 70/83Kloppenburg v Finanzamt Leer [1984] ECR 1075.
Community law beyond what had been agreed in the Treaties and enacted by the German Legislature, such rulings would be considered as ultra viresand therefore be inapplicable in Germany.
It was the Bundesverfassungsgericht who put the ‘Krieg der Richter’ to rest,135holding that Article 234 EC conferred upon the Court of Justice the power of final decision over the interpretation of the Treaty and the inter- pretation and validity of Community law deriving from it. Judgments of the Court under Article 234 EC were binding on the national courts decid- ing the same issue. However, the jurisdiction granted by Article 234 EC was not unlimited, and the limits imposed on it by the Basic Law were ultimately subject to the jurisdiction of the Bundesverfassungsgericht. But the Court held that in the case at hand, the Court of Justice had stayed within the bounds of the powers assigned to it. It was within the bounds of Article 24(1) of the Constitution to grant the Court of Justice an author- ity to develop the law, within the limits to the scope of the Community’s authority. Therefore, the Bundesfinanzhofwas bound by the preliminary ruling handed by the Court of Justice. If it had not wished to follow the view of the law stated by the Court of Justice, it should have made a fresh reference. And the Constitutional Court concluded: ‘The Federal Supreme Fiscal Court avoided in an objectively arbitrary way the obligation to request a further preliminary ruling from the Court of Justice pursuant to Article 177(3) EEC. It a court of final appeal refuses to fulfil this obligation regarding questions of law which have already been subject of a preliminary ruling by the European Court of Justice in the same proceedings, that constitutes a violation of Article 101(1), sentence 2 of the Constitution, regardless of how the criterion of arbi- trariness is construed in relation to violations of the obligation to obtain a pre- liminary ruling pursuant to Article 177’.136 In the case at hand the Constitutional Court in practical effect strengthened the authority of the Court of Justice. Yet, the decision also contains an important warning, which it repeated in stronger terms in the Maastricht Urteil: the Bundesverfassungsgerichtwill check the development of Community law by the Court of Justice.
The Bundesverfassungsgericht defined the notion of arbitrariness in a decision of 1990, where it detected three sets of cases that amount to an infringement of Article 101 of the Grundgesetz:137 first, cases where the relevant court does not at all consider referring a question, even though
135Bundesverfassungsgericht, decision of 8 April 1987, Kloppenburg, BverfGE 75, 223; [1988] 3 CMLR 1; Oppenheimer, The Cases, 497; see e.g. M Zuleeg, ‘Bundesfinanzhof und Gemeinschaftsrecht’, in 75 Jahre Reichsfinanzhof – Bundesfinanzhof – Festschrift, Der Prọsident des Bundesfinanzhofs (ed) Bonn, Stv, 1993) 115; CO Lenz and G Grill, ‘Zum Verhọltnis zwischen dem Bundesfinanzhof und dem Gerichtshof der Europọischen Gemeinschaften’, in P Kirchhof et al(eds), Steuerrecht – Verfassungsrecht – Finanzpolitik – Festschrift fỹr Franz Klein, (Kửln, Otto Schmidt Verlag, 1994), 103.
136Translation taken from Oppenheimer, The Cases, 496, at 518.
137Bundesverfassungsgericht, decision of 31 May 1990, Absatzfonds, BVerfGE 82, 159.
that court itself has doubts about how to answer the question at issue correctly; second, where the court deliberately departs from the case law of the Court of Justice without making a reference. The third set of cases, and the most difficult to decide in practice, were those where the case law of the Court of Justice was not entirely clear or open for development, and the court of final instance decided the case in one way, while the oppos- ing opinions on the Community issue would evidently have to be given priority.138The second case in which the right to a lawful judge was suc- cessfully pleaded against a failure to refer under Article 234(3) EC was handed in 2001,139when the Bundesverfassungsgerichtmade the test even stricter on the final instance courts: where the position of the Court of Justice was not entirely clear on a particular topic, any failure to refer would constitute a violation of Article 101 of the Basic Law, even absent any ‘incorrect’ decision of the final instance court, or any arbitrariness.
When it comes to its own relationship with the Court of Justice, the Bundesverfassungsgerichtspeaks of a ‘Kooperationsverhọltnis’, a relation of co-operation. This relationship is however not the relation of co-operation which one would expect on the basis of the text of the Treaties, whereby the application of Community law is left to the national courts, while the European Court deals with the interpretation and validity thereof, with the preliminary rulings procedure as the means of communication between both levels. The relation of co-operation described by the Bundesverfassungsgericht, most notoriously in its Maastricht Urteil, is one in which, in practical effect, the Constitutional Court supervises the Court of Justice, in the area of fundamental rights and with respect to the limits of the Community competences. The Maastricht judgment must be put in perspective since the Alcan decision140 and the final decision in the banana saga,141but in any case, the Bundesverfassungsgerichtdoes not dis- play the same strictness when it comes to its own duty to refer.
The characterisation of the Court of Justice as a gesetzliche Richterhas been taken over in Austria.142But most systems do not know any similar rule or provision. In fact, the Spanish Tribunal constitucional has announced that it had no business with the way in which the lower courts did or did not refer questions to Luxembourg. In the FOGASA case, a complainant claimed that his right to effective judicial protection under
138See also CD Classen, Case comment, ‘German Bundesvergfassungsgericht: Medical training, Decision of 9 January 2001’, 39 CML Rev,2002, 641, at 644–45.
139Bundesverfassungsgericht, decision of 9 January 2001, Medical training, available on www.bverfg. de; commented in 39 CML Rev,2002, 641.
140Bundesverfassungsgericht, decision of 17 February 2000, Alcan, available on www.bverfg.de.
141Bundesverfassungsgericht, decision of 7 June 2000, Bananas III (Atlanta), BVerfGE 102, 147.
142See P Fischer and A Lengauer, ‘The Adaptation of the Austrian legal system following EU membership’, CML Rev, 2000, 763, at 779, reference to Verfassungsgericht, decision B 3067/95 of 30 September 1996.
the Spanish Constitution had been infringed, because the court of final instance hearing his case had not referred a question to the European Court. The Tribunal constitucionalanswered that ‘the decision not to ask for a preliminary ruling from the European Court of Justice may not, per se, result in a violation of the Constitution (..) This decision belongs exclusively to the ordi- nary judge and may not be subject to review by this Court’.143