Thursday, 26 August 2010

The German Constitutional Court Restricts Its Own Powers

Back in January this year I wrote about the German age discrimination case of Seda Kücükdeveci, the outcome of which appeared to be a declaration of war by the ECJ on Germany's Constitutional Court's self proclaimed powers over the Lisbon Treaty. At the time I noted:
What's interesting to note is that this is a direct challenge to the German Constitutional Court's self proclaimed supremacy, that it established in a ruling before Germany's ratification of the Lisbon Treaty:

“The peoples of the member-states are the holders of the constituent power. The Basic Law does not permit the special bodies of the legislative, executive and judicial power to dispose of the essential elements of the constitution.”

By ruling that, essentially, directives can have a horizontal effect - they can be relied upon in a suit between citizens - the ECJ has issued a challenge by directly using the anti-discrimination directive in an employer-employee relationship, thus by-passing German industrial law.

It will be interesting to see the Constitutional Court's response.
Kücükdeveci was essentially a Mangold part 2 (this time it's personal) case. Mangold was a notorious case in 2005 which the ECJ ruled that German law was 'inapplicable':

The plaintiff in the so-called Mangold case had a temporary work contract with an auto supplier. The arrangement was based on a government law allowing employers to give only temporary work to people over 52 years of age.

The EU court ruled that the law, proposed as part of a general package to free up the country's labour market, was age discriminatory and should not be enforced. This in turn led the national court to say the plaintiff was within his rights to ask for a permanent contract.

The employer then took the matter to the constitutional court saying that the EU court had overstepped its powers by ruling on short-term contracts as protection against anti-age discrimination was not part of EU primary law but had been handed down in a directive, which member states have some leeway in implementing.

Quite simply there has been a sort of legal arms race between the German court and the ECJ over EU primary law. And according to the judgment reported by today's EUObserver it looks as if the Germans have backed down for the sake of EU unity:
Germany's constitutional court has laid down the ground rules for controlling decisions by the EU top's court, an area that had been left unclear after a controversial 2009 ruling by Germany's highest judges on the Lisbon Treaty, the EU's new rule book.

Thursday's pronouncement backed by seven of the eight judges not only avoids a direct conflict with the EU's Luxembourg court but also appears to strengthen it. Germany's court stated that EU decisions may only be checked if European institutions seriously overstep their powers.
As a headline in the Frankfurter Allgemeine Zeitung says: "Karlruhe (the court) restricts its own powers."
The ECJ is trying to expand the scope of EU law and establishing its primacy via Directives so that they are directly applicable. It now appears they won't meet much resistance (my emphasis):

One judge, Herbert Landau, disputed the decision reached by his colleagues, whom he accused of abandoning the Lisbon Treaty consensus. He said the ECJ decision on age discrimination was clearly overstepping its powers and said his colleagues did not take into account the creeping transfer of powers to the EU.

German President Roman Herzog, who has been critical of the direction of the EU court's rulings in the past, has previously written that the Mangold case would set the tone for future relations between the ECJ and national courts.

It's currently developing its jurisprudence in the area of age discrimination and it's hard to see how the German Constitutional Court will now challenge the Kücükdeveci verdict.

The only question left is what area will be next for the ECJ?

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