German Constitutional Court on Lisbon and Mangold

The issue of the respective competence of the EU, and particularly the activities of the ECJ (to continue to use a familiar abbreviation), continues in the case law of the German Constitutional Court. As readers are probably aware, the constitutionality of the Lisbon Treaty was reviewed by the German Constitutional Court (among others). In its Lisbon judgment (2 BvE 2/08,2 BvE 5/08,2 BvR 1010/08,2 BvR 1022/08,2 BvR 1259/08, 2 BvR 182/09), it gave a limited approval to the Treaty but left open the possibility of review of EU acts. Prior to the Lisbon Treaty coming into force, the ECJ had handed down a controversial judgment in the case of Mangold. The former president of the German Federal Constitutional Court had strongly criticised the judgment, as can be seen in this press report. For those of you unfamiliar with Mangold, the decision is discussed in an earlier post. The recent German Federal Constitutional Court decision (2 BvR 2661/06) concerned the constitutionality – in the light of the Lisbon judgment – of a ruling of a lower German court (the Federal Labour Court), in which the Federal Labour Court struck done a fixed term contract applying the Court of Justice decision in Mangold. The employer challenged this ruling in the light of the Lisbon judgment. The employer argued, amongst other grounds, that the Court of Justice’s Mangold decision exceeded EU competence and should therefore not be applied in Germany as it was an ultra vires act. Whilst commentators waited excitedly or anxiously (depending on their respective political persuasions) on the outcome, the German Federal Constitutional Court has once again balanced EU claims with national constitutional provisions while leaving open further questions. In sum, the court rejected the complainant’s argument. The court acknowledged that the Lisbon judgment stated that the court could review the vires of the European institutions, but it emphasised that it may only do so in a manner that is open towards European law. The trigger for review seems high: that the complained of acts being manifestly in breach of competences and the impugned act leading to a structurally significant shift to the detriment of the Member States in the structure of competences between Member States and the European Union. Applying this principle to the case in issue, the outcome in the Mangold judgment is not a sufficiently manifest example of a breach. The court argued that ‘even a putative further development of the law on the part of the European Court of Justice that would no longer be justifiable in terms of legal method would only constitute a sufficiently qualitifed infringement of its competences if it also had the effect of establishing competences in practice’. This is not in the case with regard to Mangold, as the Union had already legislated on age discrimination. Note that the judgment was not unanimous and that one dissenting judge, Landau, argued that the decision in this case ‘transgressed the consensus’ on which the Federal Constitutional Court’s Lisbon judgment was based, by introducing the double test of a manifest breach AND a shift in competence. Whilst the Federal Constitutional Court has rebuffed the challenge in this case, it is clear that it retains its right to review the boundary between EU and national competence, and that undoubtedly further questions will be referred to try to identify precisely where this lies – or the extent of the court’s stomach for a fight.

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