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In the next weeks the German Federal Constitutional Court (hereinafter, "FCC") will decide a case referred to it by the Administrative Court of Frankfurt under Art.100 of the German Constitution ("Grundgesetz," hereinafter: "GG"), asking the Court whether certain provisions contained in EC Regulation 404/93 (hereinafter, "the regulation") establishing a market order for bananas in the European Union, are applicable in Germany or whether this regulation violates German Constitutional Law, thereby rendering it inapplicable.[3] Should the Court hold the regulation to be inapplicable, it would be the first time that a regulation explicitly held by the ECJ to be in accordance with EC law, is declared unconstitutional by a Member State Constitutional Court with the consequence that two directly contradictory rulings on the binding nature of a particular piece of secondary EC legislation would be in existence in the European legal universe for the first time.
The case highlights in a dramatic way the problematic question: how should the relationship between the European Court of Justice (hereinafter, "ECJ") and the Member States' highest judicial organs be legally conceived? The question is whether the Member States' highest judicial organs (in the case of Germany, the FCC), may subject secondary Community Law to judicial review, and if so, what kind of review is constitutionally warranted.
The thesis I put forward consists of three claims. The first claim is that there are good reasons to focus on the question of the kind of review that is constitutionally warranted by the FCC, rather than whether judicial review should take place at all. The second claim is that the conception of the relationship between the ECJ and the FCC as defined FCC's latest jurisprudence is based on a legally unconvincing and normatively inappropriate reading of the German constitution. The third is the claim that there is an alternative conception that provides a constitutionally sound, normatively more appropriate and politically more sensitive account of the relationship between the ECJ and the FCC.
The argument will unfold in three parts. Each part will deal with one conception of the relationship between the ECJ and the FCC. Of the three approaches discussed, two can be understood as the conceptual underpinnings of positions held by the ECJ and the FCC respectively. Traces of the third can be found in the older jurisprudence of the FCC as well as in some passages of its current jurisprudence. The purposes of the argument are, first, to elucidate the internal structure of each conception highlighting its premises and internal consistency, second to examine how these structures play out in the elaboration of the central doctrines governing the relationship between the ECJ and the FCC, and third, to consider how the application of these structures would impact the decision of the FCC in the case before it now. Finally the paper will also analyze the strength and weaknesses of these conceptions.
EC regulation 404/93 establishes a common organization of the market in bananas. On the one hand, the regulation sets up a system of assistance to ACP banana producers, closely attached to French, Spanish and Portuguese importers. On the other hand, it establishes quotas and tariffs for third country bananas, most of whom are established in Central America and owned by U.S. growers. The measures are aimed at restricting the importation of third country bananas, and market share in the Community. One of the most prominent customers of these growers were German importers and distributors, who had enjoyed a regime of tariff-free imports prior to the regulation. Under the regime of EC regulation 404/93, quotas of bananas from third countries entitled to preferential treatment under the regulation were allocated to importers based on prior sales. Imports outside these quotas were subjected to prohibitive tariffs. Many German importers were hit hard by these regulations, with some facing bankruptcy. Banana prices in Germany went up.
Atlanta Fruchthandelsgesellschaft ("Atlanta"), one such importer, is the plaintiff in the case before the Administrative Court in Frankfurt. Atlanta has already been through something of a legal odyssey. The corporation initiated legal proceedings by bringing an action under article 173 para. 2 ECT before the ECJ for a declaration that certain provisions of the regulation were void, but failed for lack of standing.[4] The case came back to the ECJ, this time as a referral under article 177 ECT by the Administrative Court of Frankfurt.[5] By this time, however, the Court had held regulation 404/93 valid in a case involving an action of annulment brought by the German government against the regulation under Art. 173 ECT.[6] The German government put its case on a number of bases, including: First, that the regulation was enacted ultra vires. The government argued that the regulation was not covered by the provisions of the common agricultural policy under Art. 39, 40 and 42 ECT and that it was in violation of the General Agreement on Tariff and Trade. Second, that the regulation was in breach of fundamental rights and general principles of law, including the prohibition against discrimination, right to property and the principle of proportionality. The Court dismissed the case as unfounded: it held that the provision concerning agricultural policy was a sufficient legal basis to support the regulation. The purported violation of GATT, it said, would not make the regulation ultra vires. No violation of rights or general principles had occurred. Since the issues raised by the Administrative Court of Frankfurt were, to a significant extent, identical, the ECJ could decide the case largely by reference to its reasoning in its earlier decision and upheld the regulation. The Administrative Court then went on to initiate proceedings under Art.100 GG, asking that the regulation be held inapplicable in Germany due to a violation of the constitution. How should the court go about deciding the case?
[3] Decision of the Verwaltungsgericht Frankfurt of 24th Oct. 1996, EuZW 1997, 182.
[4] Case C-286/93 ECJ.
[5] In fact it was split into two cases, one dealing with the question of interim measures (C-465/93 [1995] ECR I-3799) and one adressing the substantative questions of the case (C-466/93 [1995] ECR I-3799).
[6] Case C - 280/93 (1994) ECR 4973