Bulletin n. 1-2/2014
November 2014
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Karsten Schneider
    Questions and Answers: Karlsruhe’s Referral for a Preliminary Ruling to the Court of Justice of the European Union
    in German Law Journal , vol. 15, issue 2 ,  2014 ,  217-239
    In the environment of ongoing endeavors to “rescue” the Euro, the Second Senate of the Federal Constitutional Court (FCC) is meanwhile dealing with several constitutional complaints challenging matters that could be described as “the future of the German Bundesbank” and “the present and the past of the German Federal Government and the German Bundestag.” Or, to be more specific, the complainants currently challenge the prospective participation of the German Bundesbank in possible future implementations of the so called “OMT Framework” of 6 September 2012. They also argue that the German Federal Government and the German Bundestag “failed to act” regarding this OMT framework. The Court’s ruling on 14 January 2014 has cleared the path for the admissibility of such complaints through use of the ultra-vires pattern. The ultra-vires pattern is the German Constitution’s generic exception handling mechanism that includes particular powers of review to examine whether acts of European institutions and agencies are based on “manifest transgressions of powers.” The Court held that the mere existence of an ultra-vires act creates an obligation on German authorities to refrain from implementing it and a duty to challenge it. These duties can, the Senate points out, be enforced before the Constitutional Court at least insofar as they refer to constitutional organs. Longest-serving Justice Lübbe-Wolff and Justice Gerhardt both dissented and delivered separate opinions. They deny support—either in the text of the constitution or in the case-law interpreting it—yielding the kind of duties and obligations the Second Senate holds in this case. The dissenters argued that, in an effort to secure the rule of law against (alleged) manifest transgressions of power, the Senate had exceeded its judicial competence.
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