This paper will examine the position taken by the German Constitutional Court, European Court of Justice and the English courts with respect to the reception of Community law in the Member States in question, namely Germany and Britain.

In contrast to the German Constitutional Court, English courts are more susceptible to the adoption of Community law in Britain. As the legislation stated below shows, this appears to be a more straightforward process.

The European Communities Act 1972, s.2 (1) gives present and future community law legal force in the United Kingdom and section 2(2) provides for the implementation of Community law by means of secondary legislation. However, the Act does not specifically prohibit Parliament from enacting conflicting legislation. If however, such conflicting legislation was ineffective insofar as it was inconsistent with Community law, the Parliament’s power to legislate as it liked would be limited accordingly.

In Stoke-on-Trent City Council v B & Q plc, Hoffmann J. was prepared to adopt the ECJ’s proportionality test when considering the compatibility of the Shops Act 1950 and the free provision of the EC Treaty. He further went on to say:

“The EEC Treaty is the supreme law of this country, taking precedence over Acts of Parliament. Our entry into the Community meant that (subject to our undoubted but probably theoretical right to withdraw from the Community altogether) Parliament surrendered its sovereign right to legislate contrary to the provisions of the Treaty on the matters of social and economic policy which it regulated.”

It was always thought that an Act of Parliament was the supreme law. Hoffmann J’s judgement, however, indicates that EEC Treaty is more important. Indeed, this case is an example of a straightforward adoption of Community law.

German Courts had experienced some difficulties in the past with regards to references to the ECJ under the preliminary ruling procedure, Article 177 (now, Article 234) of the EEC Treaty. In the case of Kloppenburg, the Federal Tax Court, despite acknowledging that EC legislation has precedence, refused to recognise the direct effects of EC law.

Contrasting the above-mentioned case with Amministrazionne delle Finanze dello Stato v Simmenthal Spa, the ECJ strictly affirmed the direct effect of EC legislation. Indeed, it held that in the case of directly applicable EEC provisions within Article 189, if provision of national law conflicts with EEC law, national law provision is to be ignored without awaiting repeal and, moreover, it has an immediate retroactive effect, i.e. the repeal is effective from the time the case first occurred and not from the time it has been repealed!

In Re Vat Exemption and Re Patented Feedstuffs 1988 the decision in Kloppenburg was rejected by the BVerfG. Indeed, German courts were found obliged to make reference to the ECJ in order to allow the parties to the case the chance to see whether Community law would have affected the outcome of the case. Indeed, individuals have now the right to a lawful judge and access to the ECJ, if needed. Thus, it follows that Community rights are to be at least considered in German Courts. Although rejecting the ratio in Kloppenberg, this decision was still miles apart from the decision in Simental Spa, as it lacked the firmly established principle in favour of Community law.

In contrast to the German Constitutional Court, the English courts did not hesitate to rely on the direct applicability of Community law. Indeed, in R v Secretary of State for Transport, ex parte Factortame Ltd not only did the Divisional Court wished to refer to the ECJ under Article 177 (now, Article 234), it in fact had to grant the plaintiffs an interim injunction against the government restraining it from applying the Merchant Shipping Act Regulations until final judgment was made following a reference to the ECJ. The reason being, the plaintiffs objected to the matter being referred to the ECJ unless the above-mentioned injunction was granted. This resulted in the government appealing to the Court of Appeal who ruled that the court had no jurisdiction to grant interim relief disapplying an Act of Parliament. Consequently, the House of Lords upheld the decision of the Court of Appeal: injunctive reliefe against the Crown was not within the court’s jurisdiction.

Further in Factortame, the court had to decide upon three important and at the same time complicated factors:

1. whether the court could protect alleged rather than established rights under Community law;
2. whether, contrary to a previous precedent, the provision of the Community law could confer jurisdiction on the English court to grant injunctive relief against the Crown;
3. the conditions, under which such relief could be granted, provided such jurisdiction existed.

The preliminary ruling of the ECJ on the first point stated that:

“The full effectiveness of Community law would be impaired if a rule of national law could prevent a court seized of a dispute governed by effectiveness of the judicial decision to be given on the existence of rights claimed under Community law.”

The ECJ reaffirmed its decision in the Simmenthal Spa case, repeating that directly applicable rules were to be fully and uniformly applied in all Member States in accordance with the principle of precedence of Community law over national law. Article 5 of the EC Treaty safeguards the principle of direct effect by imposing an obligation to ensure the legal protection it provides.  

The Community Council of Ministers is the body having the decision-making powers. Its members are appointed by the governments of Member States. Thus, in Germany, it is the Federal government participating in the Council of Ministers, not the Länder. As a result of this transfer of power from national level to Community the position of Länder within the national system had been threatened. This is especially so considering the expanded Community competence under the Maastricht Treaty. For instance as a result of the EC Broadcasting Directive imposing quota on European products and regulating advertising, the competence of the Länder was seriously undermined. The case was decided against the government as it failed to adequately work with and consult the Länder. Even though the matter was of Community nature, failing to fulfil its duty, the government infringed on the legislative competence of the Länder.

The Maastricht Judgement questioned whether or not the accession to the Maastricht Treaty would threaten the German democracy and sovereignty by way of infringing Articles 38 and 20. It was submitted that only Article 38, on the right to take part in government elections could be infringed, but only if the transfer of powers to the EC resulted in non-observing of the minimum requirements under Article 20(1) and (2), namely the right to participate in the exercise of state powers.

In reaching its judgment, the BVerfG considered the whole content of the Maastricht Treaty and concluded that:

1. The treaty coming into force would provide better protection of German fundamental rights;
2. That in this way, a shield would be provided against the acts of the EC institutions, as they will be reviewed according to the Grundgesetz protections. It was submitted that the ECJ would cooperate in this process.
3. BVerfG would restrict itself to a general guarantee of basic rights standards, the reason being - the guaranteed basic rights for the whole of the Community by the ECJ.

The constitutional principles under Article 38 Grundgesetz on democracy and the right to vote for government was submitted to be threatened only if the freedom it provides for is reduced to such an extent as to become meaningless and therefore in breach of Article 39(3) and 20(1).

Furthermore, the Court held that Article 38 does not allow a general transfer of powers. Unless the German Accession Act is specific as to the scope of the transferred powers, Article 38 would be breached.

It follows that EU institutions had to ensure that the Treaties were applied and developed to be compatible with the Accession Act manner in order for Community law to be binding within the German state. Thus, in order for this process to be successfully carried out, the Community legal order was subjected to the BVerfG’s review first!

These conclusions established that both the Accession Act and the Maastricht Treaty were constitutional.

It seems that the BVerfG exercises a supervisory role over proposals for integration. However, it is argued that this compromises the democratic ideals of the EU. Nevertheless, Article 23 makes further European integration impossible.

Concerns about the participation of the Länder may be resolved providing Bundesrat and Bundestag representatives become more involved participating at a European level and increase their efficiency in reviewing Community proposals.

EU decision-making may be held up due to Article 23 Grundgesetz, imposing a cumbersome legislative procedure in Germany.

Furthermore, it has been argued that lower courts may attempt to make the BVerfG aware of possible Community law infringements on the Grundgesetz. However, the judgment of the case in question suggests that the BVerfG is prepared to undertake the functions it has reserved for itself. If this happens, a conflict between Community law and Grundgesetz, or between ECJ and the BVerfG is very possible. The main reason being, BVerfG reserving the reviewing right over the following areas:

• reviewing legal instruments of the EC for their compatibility with the transferred powers;
• adjudicating on complaints that either the ECJ or the Community have overextended their jurisdiction in developing Community law;
• reviewing Community law in the light of fundamental rights and provisions of the Grundgesetz.

Although English courts are comparatively more susceptible to adopting Community law compared to German Constitutional Court, there are conflicts occurring between English and Community law too! An example that springs to mind is the case of Macarthys v Smith. The case was one of sexual discrimination. The main issue for consideration being whether men and women, employed at different times for the same job, were required by the Equal Pay Act 1970 to be paid equally.

Article 141 of the Treaty provides for equal pay for men and women. However, it is understood in far broader terms than those used in the Equal Pay Act 1970. The matter was subsequently referred by the Court of Appeal to ECJ under Article 177. The ECJ held that article 119 required equal pay for men and women, whether they were employed contemporaneously or in succession.

Another example of conflicts occurring between English and Community law is the case of Garland v British Railway Engineering Ltd . The issue here was whether a policy allowing concessionary travel facilities to children of male employees reaching retirement amounted to discrimination contrary to Article 119, as it did not allow the same benefits to children of female employees reaching retirement. The ECJ had to decide whether the courts in England should construe the Sexual Discrimination Act 1975 in a manner compatible with the requirements of Article 119. The ECJ ruled that the policy amounted to discrimination contrary to Article 119 and that Article 119 must prevail.

Reception of EC law is difficult because the EC has ignored the internal political and legal make up of Members States, thus complications with implementation of EC legislation occur regardless of whether Member States are Federal States or Constitutional Monarchy.

 (Word count – 2496)

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Legislation and cases

Amministrazionne delle Finanze dello Stato v Simmenthal Spa, Case 106/77: [1978]

ECR 629

Brunner v European Union Treaty [1994] 1 CMLR 57

Costa v ENEL, Case 6/64: [1964] CMLR 425

Garland v British Railway Engineering Ltd, Case 12/81: [1983] 2 AC 751; [1982]

ECR 359

Internationale Handelsgesellschaft GmbH v EVST, Case 11/70: [1970] ECR 1125;

[1972] CMLR 255

Kloppenburg 1988 NJW 1459

Macarthys v Smith [1979] 3 All ER 325 (CA)

Re Patented Feedstuffs 1987 NJW 1456

R v Secretary of State for Transport, ex parte Factortame Ltd Case C-221/89) [1991}

3 All ER 769 (ECJ)

Stoke-on-Trent City Council v B & Q plc [1984] AC 754

Re Vat Exemption 1988 NJW 2173

Van Gend en Loos v The Netherlandse Tariefcommissi Case 26/62; [1963] CMLR

105

Wunsche Handelsgesellschaft BVerfGE 73, 339

Bibliography

Textbooks

Youngs, R., Sourcebook on German Law, 2002, Cavendish Publishing Limited

Freckmann, A., The German Legal System, 1999, Sweet & Maxwell

Foster, N., German Legal System and Laws, 1996, Blackstone Press Limited

Cohn, E. J., Manual of German Law, 1968, Oceana Publications, Inc.

Barnett, H., Constitutional and Administrative Law, 2000, Cavendish Publishing Ltd

Pollard, D., Constitutional and Administrative Law, 1997, Buttherworths

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