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The positions dealt with so far as well as the arguments invoked have clarified what the debate is really about. The FCC's approach can be understood as employing the familiar conception of the sovereign nation state in as a conceptual shell marshaled in defense of `basic rights' and `democratic self-determination' against unwarranted intrusion by acts of European legislation. Doing so the FCC's approach mistakes the statist model for values which, since the French Revolution, it has been thought to protect and fill with life. The ECJ is making use of a formalist and positivist conception of the Rule of Law in the tradition of Hans Kelsen to justify its position: The court embraces the possibility of an autonomous legal order without reference to statehood but insists that there need be a clear-cut hierarchy of norms and a clear delimitation of judicial jurisdictions for a coherent legal order to be established. This is progress to the extent that the liberal ideal of the Rule of Law is analytically divorced from the conception of the sovereign nation state, with whom it was wedded as a matter of historical contingency only. It is a regression to the extent that it no longer able to integrate into its account of the law the more substantive dimension of a liberal conception of justice. The conception defended here tries to avoid both mistakes and the false dichotomies they foster by refocusing on the values or principles that form the core of the complex ideal of the Liberal Rule of Law by putting them back on center stage.
At the center of the position to be defended here are three, often conflicting, sets of values or principles. The first principle is formal and sounds banal: Any conception must fit the constitution it is helping to interpret. It must be an interpretation of the constitution. I call this the principle of constitutional fit. It is, however, not banal: This principle reflects a pluralist conception of law in the European Union. It is called pluralist in opposition to monist, because the coherence of the system is not thought to depend on there being only one legal order instantiated by one Grundnorm. It is not dualist because it does not exclude the possibility of there being more than two levels of legal orders.[43] This principle is incompatible with the ECJ's European Monist conception, according to which the European Legal Order frames the task of constitutional judging at the Member State level. As discussed above, the question of choosing between a monist or a pluralist legal model for the European Union seems very much an open one. There are, however, strong realist grounds for a conception that allows judges to look at their respective constitutions as the starting point of their inquiry: That is what the citizens of their country expect them to do, and to it they swear their oath of allegiance.[44] The second principle prescribes adequate respect to the formal ideal of the realization of the Rule of Law on the European level. This I call the principle of expanding the Rule of Law. This principle aspires to the uniform application of supranational laws providing for the predictability and regularity associated with the Rule of Law and extending it to the supranational level. The realization of this ideal was the normative argument underlying the ECJ's European Monist positions. The third principle aspires to the realization of a substantive conception of liberal democratic governance. It aims to institutionalize the highest possible level of fundamental rights protection and democratic legitimacy on each level of governance. This I call the principle of democratic legitimacy. This principle accommodates legitimate national sensibilities regarding the protection of substantive ideals of individual rights and democratic self-determination against encroachment by illegitimate forms of supranational legislation. In this way, those sensibilities underlying the national statist conception, for which there are defensible grounds, are addressed.
Together these principles provide a normative framework for the assessment of any set of doctrines dealing with the question of the relationship between the ECJ and the Courts of the Member States. The best set of doctrines within a particular constitutional context at a particular time is the one that realizes these principles to the highest degree possible, all things considered. There are three characteristic features of this approach, that are both its strengths and its weaknesses. Firstly, this conception can be applied to the interpretation of constitutions in all Member States and the European Legal Order. The strength, therefore, lies in its universal applicability. Its weakness lies in the fact that it does not guarantee that the results such an interpretation leads to will be the same in every legal order. Secondly, it is flexible in that it provides a framework within which changes to the legal systems (at both national and supranational levels) can be adequately reflected in the elaboration of doctrines used to describe their relationship to one another. Thirdly - unlike the other two conceptions - this one does not provide a relatively hard and fast answer to the question of the relationship between Member States courts and the ECJ. It is only a starting point and structuring device that facilitates the task of elaborating doctrines by asking the right questions and dealing with the right problems. Its strengths and weakness will become apparent as it is applied to the case of the constitutionality of regulation 404/93. How would an FCC that was committed to this approach go about deciding the case?
The first issue for the court to determine is its own requisite jurisdiction. In the case before the court this question would be framed as one concerning the scope of Art. 100 GG. The wording of Art. 100 GG is clear: Jurisdiction under this article extends only to parliamentary laws enacted by German parliament. The question is, whether there are good reasons to read this clause to extend to acts of secondary EC legislation.
Under the national statist approach the answer is clear. Since all legislative acts that are directly applicable in Germany are only directly applicable because of a legislative act of parliament that prescribes their direct applicability, the extension of jurisdiction to such acts follows naturally: An act of parliament for which there is FCC jurisdiction under Art. 100 cannot authorize the creation of a body of law that is immune to it and undermines the legal protection guaranteed by Art. 100 GG. To the extent that special considerations apply at all, these concern only the way that jurisdiction is exercised.
Under the Liberal Legal Pluralist conception the starting point would be to acknowledge the existence of the European Legal Order as an autonomous body of law supreme in its own sphere and therefore applicable in Germany. The constitution did not limit the FCC's jurisdiction to public acts attributable to the exercise of German public power, because that was the only one exercised on German territory at the time. It limits the exercise because it acknowledged the possibility of an autonomous legal order developing in Europe (Art. 24 GG old), whose acts should generally not be subject to the FCC's review. Prima facie, such an autonomous legal order would not be subject to FCC jurisdiction. The court in its pre-Maastricht phase can be interpreted to have taken such an approach. This approach would find its constitutional basis in Art. 23 GG and the Preamble, constitutionally committing the FRG to pursue a course of integration aimed at establishing a united Europe. Whatever the ambiguous formula of a `united Europe' may refer to, any reasonable interpretation of it would need to include as part of it the ideal of a community of law establishing the Rule of Law on a supranational level, if the formula is to mean anything at all. Therefore the principle of the expansion the Rule of Law to the European level is part of the law of the land in Germany. This principle is realized to a higher degree, if the Member States courts do not have the requisite jurisdiction to subject EC law to constitutional scrutiny. Therefore the principle provides an additional reason not to read Art. 100 GG to extend to acts of secondary EC legislation.
There may, however, be constitutionally warranted reasons of sufficient weight to rebut the arguments establishing the presumption of such a reading of Art. 100 GG. This is where the principle of democratic legitimacy comes in. If the legal practices on the European level as reviewed by the ECJ do not provide sufficient guarantees that fundamental principles of the constitution are protected, the extension of jurisdiction to European legislative acts can be justified: German courts and other authorities are implicated in the application of European Law in Germany. They are bound by the fundamental principles the German Constitution espouses. This includes the fundamental principles underlying the catalogue of basic rights (Art. 1-19 GG) as well as the principle of democracy (Art.20 Sect. 2 GG). If the legal practices on the European level, and in particular the practice of review by the ECJ, do not provide sufficient guarantees that these principles are generally respected to a sufficient degree, then jurisdiction should be asserted in the areas where such dangers persist. There are two areas, where such an assertion of jurisdiction could be considered.
The first is the area of fundamental rights. Here the standard formulated in the "So long as II" decision seems a reasonable one. The standard includes two important features worthy of mention. First, it focuses not on the individual case, but on the general practice of rights adjudication on the European level. Second it does not simply demand the replication of the basic rights catalogue contained in the GG and the FCC's adjudicative practices complementing it. Instead, it requires the standards of protection of rights to be essentially comparable. Whether, according to the "So long as" standard jurisdiction should once again be asserted by the FCC is a question that the court has jurisdiction to examine. This is what it has been asked to do in the present proceedings. Whether in fact the current practice of the ECJ makes such a reassertion of jurisdiction appropriate is a question not to be pursued here.[45]
The second area is legislative jurisdiction. The fundamental principle here protected is the integrity of the practice of political self-determination on a national level, as guaranteed in Art. 20 Sect. 2, 38 GG. It is violated if legislation is enacted on the European level concerning subject matters for which there is no reasonable jurisdictional base. When determining its jurisdiction, the court could use the same approach it has used concerning basic rights jurisdiction: It has jurisdiction only to the extent that there are no sufficient safeguards instituted on the European level to prevent an unjustified usurpation of legislative power. Here the Court would need to look both at the general procedural requirements in force at the European level and the substantive competential provisions and then assess whether the ECJ as an arbiter on European practice, takes them sufficiently seriously. However, unlike in the case of basic rights disputes - where the Court is rightly concerned with the ECJ's practices in protecting those rights - in cases of dispute over legislative competencies, the FCC will need to expand its inquiry beyond the ECJ's practices. In the latter case, the ECJ's role may primarily be one of policing the procedure and forms of the legislative decision-making process. The FCC's focus of inquiry, however, would have to shift to examine the kind of procedural and formal mechanisms in place. Probably the claim that the Court does not take issues of legislative jurisdiction seriously is a claim not without grounds, perhaps warranting the assertion of jurisdiction to review EC legislation. The issues raised in this discussion, however, are beyond the scope of this paper. This discussion seeks to frame the questions for analysis and provide a framework for their worked resolution.
Should the court find that it has jurisdiction, to what standard should it subject secondary EC law?
The standard the Court subjects secondary EC law to must adequately reflect the double role the FCC plays when adjudicating EC law. First of all the Court is, of course, the ultimate guardian of the principles enshrined in the national constitution. Besides the substantive protection of basic rights and democratic self-determination on a national level, these principles also include furthering a `united Europe' (Art. 23 GG) or, more specifically, expanding the Rule of Law to the European level. This principle gives rise to another role of the FCC, which it assumes when adjudicating the constitutionality of EC law: the role of a subsidiary guardian of the European Legal Order. When it asserts its jurisdiction, the Court does not act merely in its capacity as a national court enforcing the idiosyncratic values of a national constitutional tradition against a European Legal Order running out of control. The court is not, to that extent, examining whether to exercise a constitutionally warranted national exit option on a case by case basis, as it reviews secondary EC laws. Were it otherwise, the court would act as an institution exhibiting schizophrenic tendencies towards the European Legal Order: playing Dr. Jekyll to the extent the conditions for assertion of jurisdiction are not met only to become Mr. Hyde once jurisdiction is asserted. Even when there are structural deficiencies on the European level and the assertion of jurisdiction is justified, the principle of expanding the Rule of Law and the court's duties to further the development of a `united Europe' under Art. 23 GG do not evaporate into thin air. Instead the court, in asserting jurisdiction and engaging in substantive review must justify its practices and its decisions in a way that is compatible with its status as a Court that is part of a European legal community. As such a court, its practices regarding Community Law must be justified to the European community as a whole. Its decisions must be written with a view to persuade and engage not only German courts and German constitutional lawyers, but also the Courts of other Member States and the ECJ.
If this is so, a two part test suggests itself as the most appropriate standard of review. The two parts reflect the double role of the FCC when it adjudicates the constitutionality of secondary EC law.
The first part of the test requires the court to assess whether there has been a violation of law on the level of the European Legal Order. The constitutional basis for such a review is Art. 23 GG. This part of the test reflects the role of the court as a subsidiary guardian of the European Legal Order. The subsidiary nature of this role is not just reflected in the fact that the Court exercises this function only to the extent there are structural deficits on the European level warranting the assertion of jurisdiction. Even when the court asserts jurisdiction, it must exercise it with due regard to the role of the ECJ as primary arbiter of the European Legal Order. This means that the court will not pass judgment without the ECJ having pronounced itself on the issue. Additionally the standard of scrutiny (Kontrolldichte) would not be a high one, whether dealing with the ECJ's fundamental rights adjudication or questions of legislative jurisdiction.
The standard the Danish Supreme Court has established for the review of questions relating to legislative jurisdiction[46] can be of general guiding value in this context. First, in this Court's view, the scope of legitimate interpretation by the ECJ is not limited to the wording of the provisions. Other factors, in particular the objectives of the Treaty, also carry weight of their own. In this respect, the decision even goes so far as to refer to legitimate `law-making activities of the ECJ within the scope of the Treaty'.[47] Secondly, the Court makes reference to the possibility of an `extraordinary situation' in which the Court can establish with the `required certainty' that an act upheld by the ECJ does in fact lie beyond the scope of the Treaty.[48] Only a plain and obvious violation (a standard amounting to no more than an `Evidenzkontrolle') would meet this requirement. Additionally, the Court's handling of this standard must meet the universalizability test: It must exercise its review in a way that is compatible with other Member States Courts engaging in a comparable practice of review without undermining the coherence of the European Legal Order. The FCC is not the only court that plays the role of a subsidiary guardian of the European Legal Order. It is part of a community of interpreters and needs to take into account the different interpretive traditions in the community and the possibility of reasonable disagreement between them.[49]
An equivalent standard could be applied to the review of fundamental rights. The FCC distinguishes between the review of legislative jurisdiction (where the FCCs approach in the Maastricht decision bears some resemblance to the first part of the test used under this approach) and the review of fundamental rights (for which the court develops its `relationship of cooperation' approach). There are, however, no good reasons to distinguish on the level of doctrine between the review of legislative jurisdiction and fundamental rights. The FCC's different approach to questions of legislative competencies and fundamental rights might be explained by reasons of judicial culture: That there is no codified European Bill of Rights on the European level may be perceived as a serious barrier by German FCC judges to assess the merit of the ECJ's adjudication in the field of basic rights. Under the approach suggested here, however, the Court ought assess the merit of the ECJ's jurisprudence even in the domain of fundamental rights. Problems arising from differences of judicial culture are sufficiently addressed by applying only the low level of scrutiny that adjudication according to the `plain and obvious' standard requires.
To the extent that a violation of the European Legal Order can be established under the above test, the Court needs to go on to examine whether there has also been a violation of other constitutional principles such as basic rights or the principle of democracy. The violation of the European Legal Order triggers the review of other constitutional principles. It is a necessary, but not a sufficient, condition to establish the inapplicability of a secondary EC act in Germany. This implies that a violation of the European Legal Order is not in and of itself a sufficient ground for holding an act to be inapplicable in Germany. Two problems need to be addressed here.
The first pertains to the constitutional principle of furthering a `united Europe' and expanding the ideal of the Rule of Law (Art. 23 GG). Isn't this constitutional principle violated if, under the first part of the test, a regulation is held to be in violation of European law? Why should any further inquiry be necessary? At this point, it is worth calling to mind that this principle establishes a strong presumption that a `united Europe', (and the realization of the Rule of Law on the European level) is best served by allowing the ECJ to assume its role as the final arbiter of constitutionality on the European level, just as the Treaty provides in Art. 164 to Art. 188 ECT. The principle is not violated every time the ECJ makes a mistake. Even when the ECJ decides a case poorly, this by itself is not sufficient to justify disobedience by the FCC, just as, for example, the Bundesgerichtshof may not justify disobeying the FCC simply because it remains unconvinced by what it considers to be the FCC's weak arguments. Considerations of unity and coherence generally have greater weight. This presumption is rebutted only if, in addition to a violation of the European Legal Order, the FCC can also establish the violation of other constitutional principles.
A second problem: is there not a violation of another constitutional principle - the principle of democracy - every time the European Community acts ultra vires? If the democratic legitimacy of any law applicable in Germany depends solely on a chain of authorizations ultimately linked to the national demos, any act ultra vires would also be a violation of the principle of democracy: The chain of authorization would be severed any time an act is not covered by the parliamentary authorization provided by the law ratifying the requisite Treaties or amendments to the Treaties under Art. 59 Sect. 2 GG. This account, however, is unconvincing for reasons discussed above. The European Legal Order is not applicable in Germany merely because of the Treaty that has formally been ratified by the Bundestag. Democratic legitimacy is not conveyed exclusively through national demoi. Ratification of the Treaty may have been a necessary requirement for the Treaty to come into force in a way that binds Germany as a matter of European Law. As a matter of German constitutional law, however, the European Legal Order has been incorporated by reference through Art. 23 GG (Art. 24 GG old). Such a construction takes seriously the pluralist idea of two separate legal orders and connects to the FCC's jurisprudence of the pre-Maastricht era.[50] It is, therefore, not sufficient to establish a violation of the European Legal order to render a piece of secondary EC law inapplicable in Germany. Instead, the second part of the two part test is independent. It is constitutional pure and simple, and does not include reference to provisions of the Treaties.
Concerning basic rights this means that the catalogue of basic rights set out in Art. 1-19 GG is the starting point of an investigation into basic rights violation. There is only one aspect in which basic rights review of secondary EC law is different from general basic rights adjudication under the Grundgesetz. When assessing whether a measure constituting a prima facie violation of basic rights is justified, the Court invariably applies a proportionality test. This test involves balancing the individual's interests against the collective goods or competing rights that the provision reviewed aims to promote.[51] For national laws, the significance of these collective goods and competing rights are assessed before the backdrop of the national community's collective self-understanding. For European laws, however, the relevant frame of reference must be the European community's self-understanding.[52] The significance of the frame of reference lies in the fact that `every legal system is also the expression of a particular form of life and not merely a reflection of the universal content of basic rights". "If the population of citizens as a whole shifts ... the discourse will be held about the same questions and other decisions will be reached." [53] The Court therefore, in reviewing EC law, is inevitably contributing to the process of developing a normatively appropriate understanding of the communities interests. It follows that even when adjudicating national basic rights the FCC is not just guardian of (unchanging) national values embodied in constitutional principles. The way these principles play out when assessing European law is itself deeply influenced by the fact that Germany is a member of the European legal community.
As to legislative jurisdiction and the principle of democratic self-determination: the fundamental principle of democratic self-determination (as guaranteed in Art. 20 Sect. 2, 38 GG) requires that legislation enacted at the Community level be justifiable under the German Constitution. The principle is violated where this justification is absent. Again, the focus is not upon whether jurisdiction exists as a question of European Community Law. Such an assessment of the European Legal Order occurs only when examining the question of jurisdiction and under the first part of the substantive test. In the second part, the standard is a purely constitutional one: There is no constitutionally sufficient basis for legislation enacted on the European level if the loss of democratic self-determination incurred by the transfer of legislative power is not offset by good reasons justifying the Community's action. When assessing whether the reasons are good enough to meet the proportionality test, the principles that apply to basic rights review also apply here: the weight of the interests involved on the Community level must be assessed with reference to the European Communities self-understanding.
Applying the two part test to the case before the FCC, the question whether the regulation was enacted ultra vires can be left unresolved. Even if the first part of the test were to be satisfied, the second part would not be. The infringement of the Germany's political self-determination through an inability to legislate on the regulation of the banana market is not significant. And even if it were: There are good reasons to establish and regulate the banana market on a Community level, just as there are generally good reasons establishing common markets for other goods. Therefore a court following the Liberal Legal Pluralist approach outlined above, even if it asserted jurisdiction using the standards elaborated above, would be unlikely to hold regulation 404/93 unconstitutional.
[43] The monist/dualist dichotomy remains trapped in statist thinking positing one legal order that is statist and another supposedly dealing with the relationship of states to one another.
[44] The oath sworn by German FCC judges, for example, is laid down in Para. 11 of the Bundesverfasssungsgerichts-gesetz (BVerfGG). It prescribes as part of the oath the following phrase: "I swear as a judge committed to justice [gerechter Richter] to always uphold the Grundgesetz of the Federal Republic of Germany ...".
[45] For two different assessments of the current ECJ practice see Coppel & O'Neill, The European Court of Justice: Taking Rights Seriously? 29 CMLR 1992, 669 on the one hand and J. Weiler / N. Lockhard, `Taking Rights Seriously' Seriously: The European Court and its Fundamental Rights Jurisprudence, 32 CMLR 1995, 51.
[46] Danish Supreme Court's Judgment of 6th April 1998, unofficial translation by the foreign ministry available under http://www.dk/udenrigspolitik/europa/domeng/.
[47] At 9.5. of the ruling.
[48] At 9.6 of the ruling.
[49] The ECJ used simliar considerations when it outlined the conditions under which a national court could abstain from an Art. 177 referral under the acte clair doctrine, see Case 283/81 (1982) ECR 3415 (Cilfit).
[50] Such as BVerfG 22, 273 and BVerfGE 73, 337.
[51] See R. Alexy, Theorie der Grundrechte (1985), 100pp..
[52] See Streinz, Bundesverfassungsgerichtlicher Grundrechtsschutz und Europäisches Gemeinschaftsrecht, 1989, at 227pp.
[53] J. Habermas, Struggles for Recognition, A. Gutmann (ed.) Multiculturalism (1996), at 124 and 126 respectively.