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In the following I will use the banana case as an example to show how the FCC approaches the question of the constitutionality of secondary EC law, focusing not so much on the particular doctrinal subtleties of the case, as on the conceptual tools the Court uses to frame the issues it deals with and to provide the criteria that inform its decision. [28]
The first issue for the court to consider is admissibility. Art. 100 GG permits the court to determine the constitutionality of a formal (parliamentary) law. Therefore, the first issue is whether the scope of the Art. 100 procedure should be read to apply not just to German parliamentary laws, as the wording of the provision suggests, but also to EC regulations. There are two problems here. First: should the Court have jurisdiction over acts attributable to a supranational organization rather than merely to the branches of the German government? Second: should EC regulations be treated as being equivalent to a parliamentary law under Art. 100 GG?
As to the first point: In a landmark decision often referred to as "So long as II", the Constitutional Court held that it would not review secondary EC law so long as the ECJ guaranteed the protection of basic rights to a degree essentially equivalent to the level of protection prescribed by the German Constitution.[29] The Court held referrals under Art. 100 GG inadmissible on this ground.[30] In its Maastricht decision, the Court has qualified this view in two respects. First it emphasized, explicitly overruling precedents to the contrary[31], that the court has jurisdiction over any public act that has direct effect in Germany (including those by supranational organizations) and therefore also over secondary EC law. This I will refer to as the doctrine of universal jurisdiction. Second, the Court qualified this assertion of jurisdiction in two specific respects. On one hand, as to basic rights, the court would refrain from exercising its jurisdiction on a case by case basis, leaving this task to the ECJ with whom the court saw itself in a relationship of cooperation. The court's self-restraint was made conditional on the essential equivalence of basic rights protection at the European and German Constitutional levels. On the other hand, the court claimed jurisdiction to determine not only whether secondary EC law violates basic rights, but also whether such an act is an act ultra vires or has a legal basis in the competence provisions laid down in the Treaties. Accordingly, there is no doubt that the court will not hold the referral inadmissible on grounds that it has no jurisdiction over secondary EC law.
As to the second point: Once the obstacle of general jurisdiction over secondary EC law has been cleared, the court is unlikely to waste time with the second issue. It will probably find it sufficient to cite precedents stemming from the "So long as I" era[32] holding that EC regulations are to be treated like parliamentary laws under Art. 100 GG, so that the referral will be held to be admissible.
The court must deal with two main issues in the substantive part of its judgment: First, whether the enactment of the regulation qualifies as a legal act "breaking out" (ausbrechender Rechtsakt), and second, whether the regulation violates the German Constitution's basic rights.
In the Maastricht decision, the Court asserted its jurisdiction to examine whether an act is within the competential limits laid down in the treaties. An act that is not within the these limits qualifies as a legal act "breaking out"[33], is therefore ultra vires and will not be applicable in Germany. The outcry this doctrine created when it was first handed down, and the subsequent judicial self-interpretation which this outcry precipitated, will probably see the court make use of the opportunity to clarify and qualify its position in three respects. First, it will acknowledge that the ECJ has the right to make a first pronouncement on an act's legality as "gesetzlicher Richter" under Art. 101 GG. If a German judge were to hold a piece of secondary EC legislation ultra vires he would be required to make a referral to the ECJ under Art. 177 ECT. Secondly, the court will point out that only it, and no other German court, may authoritatively hold such an act to be ultra vires. A domestic court, unpersuaded by the ECJ's arguments, would therefore have to make a referral to the FCC under Art.100 GG, just as the Administrative Court of Frankfurt has done in this case. Thirdly, it will establish a standard of scrutiny, that will allow for some discretion on the side of the ECJ. It can be expected that only interpretations of the ECJ that the FCC holds to be clearly and obviously erroneous will be overruled for the purposes of an act's application in Germany.[34] It will be interesting to see whether the court addresses the methodologically problematic question of how to draw the line between legitimate interpretation and an illegitimate attempt to amend the Treaties by judicial fiat. It is, however, more probable that the Court will make use of rhetorical thunder enunciating what it claims to be obvious and clear to justify the decision it will reach.
The court will need to address three issues. First, whether the provisions in the treaties for the common agricultural policy (in particular: Art. 43, 40, and Art. 39 ECT) provide a sufficient basis for the regulation of the banana markets under regulation 404/93. More specifically: can the regulation be interpreted as aiming at the realization of the policy purposes listed in Art. 39 ECT (which does not include the development of ACP states)? Secondly, the court will need to ask whether an act in violation of GATT rules is for that reason ultra vires. In this case, a GATT panel report in May found the regulation in violation of GATT rules, a finding confirmed by the appellate body report, which was adopted by the dispute settlement body in September 1997. Finally, it is unlikely that the court will discuss whether the FRG may invoke Art. 234 ECT in the context of a GATT violation. The ECJ has not yet made a decision on this point.
Since for the purposes of this paper, nothing turns on how these questions will be decided or how they should be decided, I will leave them aside, and turn to question the options the court faces when confronting basic rights issues.
According to the doctrine enunciated in its "So long as II" decision and restated in the Maastricht judgment the FCC will not exercise its jurisdiction concerning basic rights so long as right protections existing at the Community level are essentially equivalent to those protections present in the German Consitution.
The court has four options. First, if it decides that the regulation is inapplicable in Germany due to the lack of a legal basis (under the ausbrechender Rechtsakt doctrine), it would no longer be necessary to deal with the issue at all. Second, the Court might restate the formula to justify its decision not to examine the question of basic rights, perhaps making passing reference to the fact that the ECJ had addressed the issue of violation of fundamental rights. However, since the Administrative Court of Frankfurt has argued in its referral that the ECJs fundamental rights jurisprudence is not structurally equivalent to the protection warranted by the basic rights of the Grundgesetz and the FCC adjudication of them - that is, since the Administrative Court of Frankfurt has argued that the conditions laid down in the "so long as" formula are unfullfilled - the issue will probably be addressed by the Court in some form. For reasons I will come to immediately, it is improbable that the court will do more than raise its finger and gently encourage the ECJ to be a little more refined in its analysis. This is the third and most likely course for the Court to adopt. A fourth unlikely option: the Court will conduct a full scale basic rights inquiry and (an even less likely course) will strike down the regulation because it violates basic rights.
It is likely that the court will hold regulation 404/93 to be inapplicable in Germany, because it constitutes, in its view, a legal act "breaking out" of the competential order laid down in the treaties. There may or may not be good legal arguments for doing so. There are, however, other considerations which may influence the decision.
First, the court, guided by Kirchhof, may wish to strike down a piece of secondary EC regulation thereby making a general point: The court has, in its Maastricht decision, adopted a position based on a conception of the FRG as a sovereign state legally integrated in a world community governed by international law. Under this model, the complexities of a globalized economy and the institution of free markets are managed in various intergovernmentally and supranationally organized arenas that do not threaten the ultimate sovereignty and centrality of member states. The European Communities are merely one set of such institutions. The European Communities' assertion of special status as a constitutionally based autonomous legal order - a conception developed, inter alia, under the guidance of ECJ jurisprudence - undermines this model of state centrality.
Secondly, political circumstances - both domestically and in the European Community - make this an opportune occasion for an assertion of the Court's statist conception. Domestically, the court would enjoy the German government's support were it find the regulation inapplicable. The Court would also expect popular support: the banana market order does not enjoy high public esteem, nor is it regarded as putting into practice an economically sound policy. On the European level, the Court's ruling would not give rise to significant political commotion. As a consequence of the GATT panel decisions, the regulation is in the process of being renegotiated and is under a deadline to be replaced by January 1st 1999. A decision rendering the regulation inapplicable might be opportune in further sense: it might provide the German government with an edge as the regulation is renegotiated. The Court's decision will support the German government's call for a more liberal banana market regime.
Thirdly, the court will probably use the ultra vires doctrine rather than opening a new chapter in the "so long as" saga for three reasons. First, in order to encourage the ECJ to cultivate some sensibilities for competential restrictions that the Treaties may be interpreted to contain. Secondly, in order to facilitate the self-presentation not as the guardian of the nation state, but as a supporter of a liberal international trade regime and international law. Thirdly, perhaps also as a likely preference informed by the institutionally focused interests and sensibilities of the Judge Rapporteur Kirchhof that a close reading of the Maastricht decision as well as his other writings exhibit.
The FCC's doctrines - as elaborated in the Maastricht decision, and to be confirmed and refined in its decision on the EC regulation of the banana market - can, to a significant extent, be understood as a working out, on an issue by issue basis, and in the language of constitutional doctrine, the consequences of adopting a conception of national statism as a normative framework and constructive starting point. In order to demonstrate and clarify this thesis, I will first provide a brief analysis of the conception of national statism, and then discuss how the central doctrines the court uses to deal with the banana case are a logical consequence of embracing such a conception.
National statism is a normative conception of a political order establishing a link between three concepts: Statehood, sovereignty and democratic self-government. Each of these concepts is highly ambiguous and the subject of elaborate theorizing. For the purpose of describing the Court's positions, however, what follows is a shorthand reconstruction of a theory of the state, as it emerges from the writings of Prof. Kirchhof[35] and the Constitutional Court's recent decisions. The concept of the state is traditionally defined by its three constituent elements: its territory, its people and the public power (Staatsgewalt) that it establishes. According to Kirchhof, the concept of a state is analytically tied to the notion of sovereignty. A polity qualifies as a state only if the public power it establishes is sovereign. That a state is sovereign means that the power established by it in its constitution is not legally derivable from any other source and therefore qualifies as supreme (rechtlich unabgeleitete, rechtlich höchste Gewalt)[36]. In other words: The laws contained in the state's constitution are the supreme laws of the land. The normative basis for the supreme status of the constitution establishing a system of governance are `the people' in the politically emphatic sense of Staatsvolk or demos. As such, `the people' are not those persons who merely happen to live under a particular regime of laws.[37] The demos is conceived of as an entity which, as pouvoir constituant, first creates a constitutional system of governance and then goes on to practice political self-determination within and through the constitutional framework it has established.
Under this model, the following problem arises: Even in a multi-level polity organized along federal lines there is no room for multiple demoi: There can be only one demos. This is because the existence of a demos is analytically tied to the constitution of a sovereign state establishing a supreme legal authority, of which there can only be one. The problem then is how to determine, in the context of a multi-level polity, on which level the demos is located. Do the people of Massachusetts or the United States qualify? The people of Bavaria, the Germans or the peoples of Europe? The question is of great practical significance because it decides three things at once. It decides whether a polity qualifies as a state, whether it is sovereign, and which legal order is, in case of conflict, supreme. If there can only be one demos, the question becomes on which level it is located and how to find out which one it is.
Kirchhof starts off by emphasizing the importance of objective "ethnic" factors such as speaking a common language, a joint sense of history, a shared culture, and so on. These considerations, however, merely help to determine whether there exists a sufficiently constant and stable joint political will to constitute a demos. The existence of the requisite will is, however, not a fact ascertainable in an empirical inquiry, such as, for example, an opinion pole. It is not, to that extent, open to contractual negotiations and certainly not a plebiscite de tous les jours. The demos is conceived of as a group of people expressing in an institutionalized form the existential commonalities that hold them together. It is consistent with such an approach that Kirchhof does not follow the American path of embarking on a historical inquiry to examine the Constitution's ratification process. Instead the requisite will is something best thought of as legally sedimented in certain attributes of the constitutional order established.
Kirchhof mentions three criteria which, taken together, are sufficient to determine whether a legal order qualifies as a sovereign demos-based state. The first is formal: The legal order must have a `Kompetenz-Kompetenz'. Kompetenz-Kompetenz is the formal ability of a legal order to deal legally with any issue it sees fit. Such a legal competence can exist either because the constitution imposes no subject-matter related jurisdictional restrictions. If a constitution establishes a system of governance of enumerated and restricted powers, as the federal constitution in Germany and the European Community[38] does, the focus is on the mechanism of constitutional amendment. Kompetenz-Kompetenz exists only if there is no requirement of unanimous consent by all constituent units. If there is such a consent requirement, then the constituent units remain the true sovereigns of the legal order they establish. Under this approach, an analysis of Art. 79 GG shows that such a Kompetenz-Kompetenz exists on the level of the German constitution, whereas Art. N EUT makes clear that this requirement is not met on the European level.[39] On the European level the Member States remain the `Masters of the Treaties'. In addition to this formal criteria, the polity would have to be bestowed with a minimal set of significant competencies in order to qualify as a sovereign state. Here Kirchhof stresses the point that the Member States remain primarily competent in the areas of defense, foreign and internal affairs as well as culture or education, whereas on the European level the focus is primarily of an economic nature aimed at the establishment of a common market. Finally, there is the criteria of democratic legitimacy. Because of the lack of the requisite joint commonalities, the procedural deficits in the EU legislative process, and the lack of a European public sphere, there can be no doubt that national legislation is of a higher democratic pedigree than the secondary law of the Communities. Applying these criteria inevitably leads to the conclusion that the FRG is a state and the European legal order is not and that the German constitution is the supreme law of the land. This is the constructive starting point of the FCC as it develops its doctrines to deal with particular issues concerning constitutional questions that relate to the European legal order.
In what follows, I will focus on three central doctrines relating to the role of the FCC in the adjudication of EC law. These doctrines were either first articulated or modified in Maastricht decision and, as suggested above, can be expected to be restated or further developed in the Banana Market case.
The first doctrine that flows naturally from the conception of national statism laid out above might be called the doctrine of universal jurisdiction. In the Maastricht decision, the court asserted its jurisdiction over all legislative acts applicable in Germany, whether of national international or supranational origin. The justification of this doctrine might proceed as follows: The notion of sovereignty implies that any law applicable in Germany is applicable only on the basis of a German constitutional prescription making it so. It is the constitutionally prescribed role of the Constitutional Court to be the final arbiter in all questions concerning German constitutional law. It follows that it is the proper function of the constitutional court to make sure that any legislative act whatsoever claiming applicability in Germany, whether it is national, international or supranational, is within the confines set out by the German constitutional prescription ultimately the source of the provision's application.
Secondly, interesting issues arise out of the Court's change to the doctrine that guides the Court's assumption of jurisdiction in subjecting secondary EC law to basic rights review. The Maastricht judgment modified the "no jurisdiction, so long as" formula of the "So long as II" decision to become "jurisdiction, but exercised in a relationship of cooperation with the ECJ". This development can be explained by a familiar line of reasoning: Any acts applicable in Germany must meet German constitutional standards. The FCC as the final arbiter on constitutional issues has jurisdiction to examine whether these constitutional standards are met. The practical significance of this modification in language may be limited. The bottom line remains that the Court does not subject secondary law to basic rights scrutiny. But the different tone puts the ECJ on notice. It is the FCC that ultimately claims a final say in determining whether EC secondary law violates basic rights, and the Court will resume that role the moment it finds the ECJs performance unsatisfactory.
The third doctrine, the doctrine of the "ausbrechender Rechtsakt" also follows naturally. EC law is applicable in Germany only to the extent that the Constitution prescribes it.[40] The German Constitution has no specific general provision prescribing the application of EC law. It does provide for acts of the German Parliament enacted according to the constitutionally set out procedures to be the law of the land. It also provides that Parliament gives its consent to treaties properly concluded by the executive in the form of a formal law. Therefore, European Law is applicable in Germany through the law that Parliament enacted when it gave its consent to the treaties in the context of the ratification procedure. An act not covered by the provisions laid down in the treaties is therefore an act that has no legal basis to justify its claim to be part of the law of the land. For the German Parliament only gave consent through ratification to acts done in accordance with the treaties. The fact that the treaty itself provides that a court, the ECJ, is competent to adjudicate whether an act by other EC organs is within their designated powers or qualifies as an act ultra vires merely provides an additional twist to this argument, without negating it. The ECJ is an organ competent under the provisions of the treaty to adjudicate the question of competency. That, however, does not exclude the possibility that the ECJ may itself act ultra vires. The court acts ultra vires if it transgresses the limits of legal interpretation and hands down decisions that in substance qualify as an amendment of the treaty. It is the task of the FCC as constitutionally designated final arbiter to decide whether the interpretive activity of the court is covered by the treaty and therefore binding, or itself an "ausbrechender Rechtsakt" and therefore not covered by the constitutional prescription making it part of the law of the land. Under this conception the only guardian that, legally, has no guardian to guard against its possible excesses is the FCC itself.
Two arguments are repetitiously invoked against the nation statist conception of the German polity. According to the first agument, the conception of a nation state as defined here is an evil in and of itself. This claim is backed up by an historical narrative. It is an evil because it has repeatedly exhibited - and it continues to exhibit - a propensity to degenerate into an aggressive nationalism ultimately leading its populations into bloody wars. According to the second argument, this conception is bad as it undermines the expansion of the liberal Rule of Law ideal to the supranational sphere. The European Communities are viewed as the most promising attempt so far to extend the zone of law beyond the border of states, attempting to integrate effectively the Member States and its people into an autonomous legal order. This can not be achieved, so the argument goes, if the ultimate decision concerning what is to be applied as law in a Member State rests on a decision ultimately made by the Member States themselves.
A third more interesting argument criticizes the theory of democratic legitimacy underlying the Court's interpretation of national statism. The national statist position implies that the only source of democratic legitimacy is linked to the demos constituting the nation state. In multilayered polities organized along federal lines, this monopolization as a source of legitimacy leads to unconvincing results in two ways. First, such a conception can not discriminate between legislative procedures on the supranational level that would generally be considered of a high democratic quality and those that lack it. Under this conception a procedure involving an elaborate deliberative process in a well constituted public sphere within the context of an institutionalized legislative procedure allowing for a high degree of transparency and clear principles of political responsibility involving a majority decision of directly elected representatives is not normatively distinguishable from back-room maneuvering of ministerial bureaucrats. Second, the practice of democratic self-determination of a subnational unit is also of no relevance for the democratic pedigree of the laws of the Länder. The laws enacted in the Länder are democratically legitimate under this conception not because of the democratic process underlying their adoption (for the people in the Länder have not acted as a demos). Rather, law making on the subnational level is democratically legitimate, because a constitutional provision enacted by the people as a whole on the national level (the demos) have prescribed that under certain circumstances laws passed by the constituent Länder are to be the law applicable to that Land. Again, only the link to the national demos decides the democratic pedigree of a legislative act.
Besides these general practical considerations, there remains a legal question: is a national statist conception of the German polity as a good interpretation of the German Constitution? If provisions of the Constitution clearly spelled out such a conception of the nation state, this would significantly strengthen the case for choosing the conceptual framework the FCC in fact employs. If, however, there are constitutional provisions that exclude such an interpretation, that would weaken the Court's position considerably. If wording and constitutional structure are unclear, the question becomes what the best conception of the relationship of the German polity to the European legal order is.
The constitutional case for the national statist conception is weak. The constitution supports neither (1) the technically strong conception of the state, nor (2) the one demos theses, that serves as a normative underpinning of such a conception.
There is nothing in the German constitution supporting a technically strong statist conception of the German polity. Unlike, for example, the French Constitution, the German Constitution makes no reference to either the concept of sovereignty or the nation. Kirchof uses Art. 20 Sect. 1 GG as the constitutional base on which to build his conception. Art. 20 Sect. 1 GG contains basic principles, that may not be modified in the ordinary constitutional amendment process under Art. 79 Sect. 3 GG, suggesting that they are of particular normative significance. Art. 20 Sect.1 prescribes that "the Federal Republic of Germany is a democratic and social federal state (Bundesstaat)". According to Kirchhof : "Art. 20 Sect.1 essentially says: The Federal Republic of Germany is a state."[41] The term statehood is, however, ambiguous. There are conceptions of statehood that analytically tie the idea of a state to the idea of sovereignty in the technically strong sense of the ultimate power formula. There are, however, also conceptions of the state that do not. All of the 16 Länder in the FRG, except for Berlin, call themselves states in their respective constitutions and invoke the people of the polity as the grounds for their constitution's legitimacy. They do not invoke Art. 28 GG, the provision of the federal constitution authorizing the Länder to enact constitutions. Nonetheless none of the Länder makes a claim to sovereignty. Having established the existence of ambiguity over which conception of the state underlies Art. 20 Sect. 1 GG, I shall go on to make two constitutional arguments against the strong statist conception.
The first argument is historical. When the German Constitution was adopted, the FRG was not a sovereign state. Following the unconditional surrender to, and occupation by, the allied forces, the ultimate public power in Germany was exercised by those forces. The military governors instituted by France, Great Britain and the U.S. ordered the formulation of a constitution, to enter into force only after their approval. Only following the Treaties of Paris and ultimately the Two-Plus-Four Treaty in 1990 (in the context of Germanys reunification), had Germany regained its sovereignty in the technically strong sense. There was, however, no constitutional assembly that proceeded to enact a new constitution. Instead the reunification process lead to a series of minor amendments. Under these circumstances it seems somewhat daring to claim that the constitution was supposed to have embodied a technically strong version of the sovereign state in the tradition of Bodin, Hobbes and Hegel.
The second argument is structural. The preamble makes reference to a Germany that aspires to be an "integral part of a united Europe". Art. 23 GG now requires German foreign policy to be oriented towards achieving a "united Europe". Whatever the formula of a united Europe may refer to, it would seem difficult to imagine it meaning anything that is compatible with the constitutional conception underlying the national statist position of the FCCs current jurisprudence.
Finally, the `one demos thesis' is equally difficult to sustain under the democratic theory espoused by the GG. There are two points worth making here.
The first pertains to the role of ethnicity as a factor giving credence to the one demos thesis. Even though the `one demos thesis' can be stated in a coherent manner without reference to common ethnicity as a characteristic of the demos[42], it is no coincidence that Kirchhof emphasizes the role of ethnicity. Without ethnic characteristics distinguishing the people in the emphatic sense of Staatsvolk on the national level from the people on other levels, the formalistic character of the statist argument underlying the `one demos' thesis would become apparent. Only in connection with a national demos that is defined by special characteristics not existing on other levels of governance does the argument gain some credibility. Whatever weight ethnicity may have as a factor when dealing with these issues on the level of political theory, as a constitutional argument in support of the `one demos' thesis it is weak. The German constitution does not prescribe an ethnic conception of the demos. Art. 116 GG, sometimes cited for the opposing proposition, prescribes the inclusion of specific groups of people as Germans on what can be understood to be an ethnic basis. An ethnic approach to the conception of a Staatsvolk would certainly be compatible with the constitution. There are, however, no provisions in the constitution generally prescribing an ethnically oriented conception of the people on a national level. Within the wide limits set by Art. 116 GG the Bundestag is free to define who and on which basis it is willing to include as part of the German demos.
The second point, however, is far more significant. Even if the German demos were ethnically defined in some manner and even if a strong case could be made that people on the national level should have the right to practice political self-determination on that level to a reasonable degree: the idea that democratic legitimacy can emanate only from this level does not follow. The implausibility on the level of democratic theory mentioned above is supplemented by the implausibility on the level of constitutional analysis. The constitution prescribes that political structures have to be compatible with the principle of democracy on every level of government, from local government (Art. 28 Sect. 2 GG) to the state level (Art. 28 Sect. 1 GG), the federal level (Art. 20 Sect. 1 and 2 GG) and the European level (Art. 23 GG). If democratic pedigree rested exclusively on the link to the level of federal (national) legislation, there would be no strong normative ground to constitutionally insist on democratic governance on each level. Instead the democratic principle in Art. 20 Sect. 1 and 2 must therefore be read to be a universal one: It embodies the principle that governance must, through whatever procedure appropriate for that level and the subject-matter dealt with, be democratically accountable to the people the regulations bind. Under this perspective there are as many demoi (some ethnically thick, some ethnically thin) as there are levels of governance.
To sum up: The national statist conception characterized by its technically strong notion of the state and the `one demos' thesis is weak both for general practical reasons and for reasons of constitutional integrity. The questions that then arise are: what plausible alternative conceptions exists and what consequences follow from their adoption? I will now turn to consider these questions.
[28] The predictions made are based on the presumptions that the doctrinal framework laid down by the Court in the Maastricht decision will be applied to this case and further refined. The presumption of doctrinal continuity is not just warranted on the basis of the doctrine of stare decisis. It is furthermore supported by the fact that the Juge Rapporteur in the second senate of the FCC in this case, Prof. Paul Kirchhof, has also masterminded the Maastricht decision. Personnel changes in the senate since the Maastricht decision suggest that his position in the senate has strengthened, rather than weakened. Furthermore insight into Kirchhofs thinking and the influence it has on the decisions that have been handed down by the senate can be traced back to his writings. Finally his unprecedented participation in public debate in the form of interviews and journal articles, unrestrained by traditional interpretations of role-restrictions, are helpful for the purposes of this paper.
[29] BVerfGE 73, 339 (So long as II)
[30] Id, at 384.
[31] BVerfGE 58, 1 (Eurocontrol).
[32] BVerfGE 37, 271 (285) (So long as I).
[33] Note the rhetorical aggrandizement of the illegitimacy of such an illegal act using this term. The term has not been part of legal terminology before the courts use of it in the Maastricht decision, where the FCC established for the first time that it has jurisdiction to examine the existance of a legal basis for secondary EC law. The associations evoked by the terminology are prisonners breaking out of prison or animals breaking out of a zoo. The sense of urgency thus evoked facilitates the acceptance of the courts claim that it should be doing something about it.
[34] See P. Kirchhof, Frankfurter Allgemeine Zeitung, December 4th 1996, p.11.
[35] See in particlular P. Kirchhof, Der deutsche Staat im Prozess der europäischen Integration, P. Kirchhof/ J. Isensee (Eds.), Handbuch des Staatsrechts, Vol. VII 1992, 882 [hereinafter: P. Kirchhof, Der deutsche Staat].
[36] This classic formula remains widely used in modern constitutional literature, see P. Kirchhof, Der deutsche Staat, at 887.
[37] For an alternative, technically weak conception of `the people' and `the state' see I. Kant, who defines `people' simply as `eine Menge von Menschen' and `state' as "die Vereinigung einer Menge von Menschen unter Rechtsgesetzen', see I. Kant, Metaphysik der Sitten, Rechtslehre para. 43 A161/B191 and para. 45 A165/B195 respectively. Calling these conceptions technically weak means that they are not being used as a tool to do a lot of systematical work within the elaboration of a political philosophy. Statehood and the `the people' with Kirchhof on the other hand are the central conceptual building blocks of his political philosophy.
[38] This point is stressed in the FCC's analysis of Art. F Sect. 3 EUT and Art. 235 ECT, see BVerfGE 89, 155 (196 pp.) and (210) respectively. As a practical matter, however, the jurisdictional limits of the Community have been continously eroded by the ECJ; see J. Weiler, The Transformation of Europe, supra, at 2437pp.
[39] Whether Art. N EUT does in fact impose additional requirements beyond unanimous consent of Member States is a question of no relevance here. For an argument that this is not the case see J. Weiler/ U. Haltern, Through the Looking Glass, supra, at 418 Fn. 26.
[40] Additionally there is no space for an autonomous legal order that can be thought of as incorporated by reference wholesale under Art. 23 GG, because the only autonomous legal orders are ones that have Kompetenz - Kompetenz. If autonomous legal orders are only those legal orders that have Kompetenz-Kompetenz, then all autonomous legal orders are states. The moment the EU becomes a federal state Germany would merely be a member unit of a federal state.
[41] P. Kirchhof, Der deutsche Staat, at 882.
[42] The one demos thesis is not structurally linked to any particular conception of the Staatsvolk or demos. The central notion that drives it is the technically strong conception of the state that ties the notion of statehood to the question of supremacy. An ethnically influenced conception of the demos does, however, lends some credence to the argument that democratic legitimacy can emanate only from the national level.