The judicial dialogue between the court of justice of the European Union and the German federal constitutional court: a relation of cooperation or tension?

Abstract

Treball de Fi de Màster: Master in European and Global Law. Curs 2024-2025

Tutor: Joan Solanes Mullor

The thesis examines the judicial dialogue between the Court of Justice of the European Union (CJEU) and the German Federal Constitutional Court (BVerfG). Their relationship is often described as one of “cooperation”, a terminology chosen by Karlsruhe itself in its Maastricht judgment. It expresses the German Basic Law’s openness to European Integration. For understanding thisrelationship, it is important to outline their perspectives on the principle of primacy of EU Law. Even if there is a general consensus on the primacy principle, both differ considerably in reasoning and reach. While the CJEU ruled in Costa/E.N.E.L. that there is an absolute primacy due to the autonomous nature of EU law, the BVerfG considers this to be only relative. Grounded on the German constitution, it reserves itself three reservations of control, a fundamental right review, an ultra vires review and a national constitutional identity review. Both approaches are logically unassailable based on their respective premises. There is no superior authority that could bindingly determine which premise is correct. This repeatedly causes tensions. In its fiercely debated PSPP-judgment from 5 May 2020, the BVerfG for the first time in its history declared both a judgment of the CJEU as well as acts of secondary EU law to be ultra vires. Critically examined here must be the enormous legal but also political dimensions of the judgment. Ultimately, the big picture of the judicial dialogue between both courts reveals a fundamental requirement. Indispensable for a genuine cooperation is, that both courts mutually respect each other’s perspective to seek for balanced solutions that realise both as fully as possible.