Order of 22 October 1986

Reasons:

A.-I.

1

1. The complainant imports preserved mushrooms, among other things, from non-member states of the European Community to the Federal Republic of Germany; such imports are subject to Community law.

2

a) In Art. 7 of the foundational Regulation (EEC) No. 865/68 of 28 June 1968 (Official Journal of the European Communities – OJ L 153/8 of 1 July 1968) on the common organisation of the market in products processed from fruit and vegetables, which also include mushrooms, the Council of the European Economic Community reserved the right to enact ‘necessary provisions to co-ordinate and standardise the treatment accorded by each Member State to imports from third countries’ in accordance with Art. 43 of the EEC Treaty. On this basis, the Council adopted general rules regarding the introduction of protective measures for such products by Regulation (EEC) No. 1427/71 of 2 July 1971 (OJ L 151/5 of 7 July 1971). Given that the Commission of the European Economic Community found that there was a serious disruption to the market of preserved mushrooms in the first half of 1974, it enacted, on the basis of Council Regulation No. 1427/71, foundational Regulation No. 2107/74 of 8 August 1974 (OJ L 218/54 of 9 August 1974) laying down protective measures applicable to imports of preserved mushrooms. In the time period relevant here (1976), this regulation was applicable in the version of Regulation (EEC) No. 1869/75 of the Commission of 22 July 1975 (OJ L 190/23 of 23 July 1975). According to this regulation, all imports of preserved mushrooms were in principle subject to the submission of an import licence, for which application had to be made before the start of the respective quarter. Moreover, the Commission reserved the right to limit imports to a certain percentage to be applied to the reference quantity, depending on the development of the market situation [...].

3

[…]

4

The Council, for its part, replaced its Regulation No. 1472/71 with Regulation (EEC) No. 1927/75 of 22 July 1975 (OJ L 198/7 of 29 July 1975), which, in its Art. 7(1), adopted word for word the relevant provision of the replaced regulation regarding the introduction of protective measures.

5

[…]

6

Since this replacement of the statutory basis did not affect the provisions enacted on the basis of the previous regulation, the implementing provisions enacted by the Council in the following period are also applicable to the aforementioned Commission regulations. These implementing provisions are contained in Regulation (EEC) No. 1928/75 of the Council of 22 July 1975 (OJ L 198/11 of 29 July 1975). In its Art. 1, this regulation defines the criteria that must be taken into particular account in determining whether the market is experiencing or threatened with serious disturbances.

7

[…]

8

If some or all of these criteria indicate a serious market disturbance, Art. 2(1a) of this regulation provides that applications for the issue of certificates for importing goods from third countries may be rejected; pursuant to Art. 2(2) first sentence, such measures may be taken ‘only to such extent and for such length of time as is strictly necessary’.

9

Since 1974, the Commission has reviewed and adjusted to changed market conditions the percentages laid down in Regulation (EEC) No. 2107/74 in conjunction with Regulation (EEC) No. 1869/75 in relation to the reference quantities of 1973. For the period relevant here, the third and fourth quarter of 1976, Regulations (EEC) No. 1412/76 of 18 June 1976 (OJ L 158/37 of 19 June 1976) and (EEC) No. 2284/76 of 21 September 1976 (OJ L 258/5 of 22 September 1976) applied; they set the applicable percentages at 70% and 100% respectively. With its Regulation (EEC) No. 3096/76 of 17 December 1976 (OJ L 348/26 of 18 December 1976), the Commission repealed its amended Regulation (EEC) No. 2107/74 as, in its view, the circumstances requiring protective measures no longer applied.

10

b) By letter of 9 July 1976, the complainant submitted an application to the competent Federal Food and Forestry Agency (Bundesamt für Ernährung und Forstwirtschaft) for a licence to import 1,000 tons of preserved mushrooms from Taiwan. This application was rejected with reference to the provisions of Regulation (EEC) No. 2107/74.

11

Following an unsuccessful objection procedure, the complainant brought an action before the Frankfurt Administrative Court (Verwaltungsgericht), arguing that the application of Regulation (EEC No. 2107/74) beyond 1 July 1976 was not justified because the market for cultivated mushrooms had seen shortages on the Community market and the unavailability of deliveries from third countries; there was thus no longer reason to fear serious market disturbances.

12

While the legal dispute was ongoing, the regulation in question was repealed with effect from 1 January 1977 and the import licence was granted. However, the complainant stated that the principal proceedings had not become moot. It applied for a declaration that the Federal Food and Forestry Agency should have been required to grant the licences requested in its application of 9 July 1976. The complainant based its interest in obtaining a declaration of unlawfulness (Feststellungsinteresse) on the risk of future rejections of its applications due to further misuse of protective measures.

13

By judgment of 25 July 1978, the Administrative Court rejected the action as unfounded on the grounds that the rejection of the requested licence had not been unlawful. According to the court, Regulation (EEC) No. 2107/74 was in line with the aims set out in Art. 39 of the EEC Treaty. […]

14

2. a) The complainant brought a leapfrog appeal on points of law (Sprungrevision) against this judgment. By order of 25 March 1981, following a suggestion made by the complainant, the Federal Administrative Court (Bundesverwaltungsgericht) suspended the proceedings and referred the matter to the Court of Justice of the European Communities pursuant to Art. 177(3) of the EEC Treaty to answer the following question:

15

Did Regulation (EEC) No. 2107/74 of the Commission of 8 August 1974 laying down protective measures applicable to imports of preserved mushrooms (OJ L 218/54) infringe the combined provisions of Art. 7(1) of Regulation (EEC) No. 1927/75 of the Council of 22 July 1975 concerning the system of trade with third countries in the market in products processed from fruit and vegetables (OJ No. 198/7) and Art. 2(2) of Regulation (EEC) No. 1928/75 of the Council of 22 July 1975 laying down detailed rules for applying measures in the market in products processed from fruit and vegetables (OJ L 1981/11) in so far as it was retained in force after 30 June 1976?

16-18

[…]

19

b) In accordance with Art. 20 of the Statute of the Court of Justice, the complainant and the Commission were given the opportunity to submit written statements, which the Court of Justice took into consideration in its judgment of 6 May 1982 (C-126/91, European Court Reports – ECR 1982, p. 1479 ff.).

20-21

[…]

22

c) The Court of Justice reviewed whether the Commission applied its margin of assessment correctly when enacting the challenged regulations.

23-25

[…]

26

With regard to the question referred by the Federal Administrative Court, the Court of Justice found: ‘Consideration of Commission Regulations No. 1412/76 of 18 June 1976 and No. 2284/76 of 21 September 1976 has disclosed no factor of such a kind as to affect their validity’.

27

d) In the further proceedings before the Federal Administrative Court, the complainant asserted a violation of various provisions of the Constitution. It suggested to suspend the proceedings and either, refer the question to the Federal Constitutional Court in accordance with Art. 100(1) of the Basic Law, of whether Regulations (EEC) No. 1412/76 and No. 2284/76 as interpreted by the Court of Justice of the European Communities in its judgment of 6 May 1982 in Case 126/81 may be applied in Germany or, refer the matter to the Court of Justice of the European Communities again, in accordance with Art. 177(3) of the EEC Treaty.

28-29

[…]

30

e) By judgment of 1 December 1982 (7 C 87.78), the Federal Administrative Court rejected the appeal as unfounded.

31-34

[…]

II.

35

With its constitutional complaint, the complainant asserts that the judgment of the Federal Administrative Court violates several procedural and substantive fundamental rights.

36-37

[…]

38

1. Firstly, the complainant asserts a violation of Art. 19(4), Art. 103(2), and Art. 101(1) second sentence of the Basic Law in conjunction with Art. 177(3) of the EEC Treaty, on the grounds that the Federal Administrative Court based its judgment on the preliminary ruling of the Court of Justice of the European Communities, rather than referring the matter to the Court of Justice again, or referring it to the Federal Constitutional Court with the aim of bringing about a request for a preliminary ruling from the Court of Justice. […]

39-51

[…]

52

2. The complainant asserts a violation of its fundamental rights under Art. 2(1), Art. 12(1) and Art. 20(3) of the Basic Law (principles of proportionality and legal certainty); it challenges the judgment of the Federal Administrative Court of 1 December 1982 and the underlying decision of the Federal Food and Forestry Agency, which is based on the application of derived Community law, namely Regulations (EEC) No. 1412/76 and No. 2284/76. […]

53-58

[…]

III.

59

Statements on the constitutional issues raised by the constitutional complaint were submitted by the Federal Minister for Food, Agriculture and Forestry on behalf of the Federal Government, the Eighth Division of the Federal Social Court (Bundessozialgericht) and the Tenth Civil Division (Patent Division) of the Federal Court of Justice (Bundesgerichtshof).

60-67

[…]

B.

68

The constitutional complaint is admissible, but unfounded. The challenged judgment of the Federal Administrative Court does not violate the complainant’s fundamental rights under the Basic Law.

I.

69

1. It would only be possible to find a violation of Art. 101(1) second sentence of the Basic Law in conjunction with Art. 177(3) of the EEC Treaty if the Federal Administrative Court would have been obliged, despite the preliminary ruling of 6 May 1982 given by the Court of Justice (C-126/81) following the referral from the Federal Administrative Court, to request another preliminary ruling from the Court of Justice in the same matter. If such an obligation existed, then the failure to make a request for a preliminary ruling violates Art. 101(1) second sentence of the Basic Law when the Court of Justice is the lawful judge within the meaning of that provision and the failure to make a referral is arbitrary.

70

a) The Court of Justice of the European Communities is a lawful judge within the meaning of Art. 101(1) second sentence of the Basic Law; this question, which previously had been left open by the Federal Constitutional Court (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 29, 198 <207>; 31, 145 <169>), is to be answered in the affirmative.

71

aa) In light of the comprehensive institutional guarantees (cf. Arts. 165 to 168, 188 EEC Treaty, Arts. 2 ff., 17 ff. Protocol on the Statute of the Court of Justice of the European Communities of 17 April 1957 [BGBl II p. 1166] and the Rules of Procedure of the Court of Justice of the European Communities of 4 December 1974 in its codified version of 15 February 1982 [OJ No. C 39/1 of 15 February 1982]), there can be no doubt that the Court of Justice of the European Communities is a court within the meaning of Art. 101(1) second sentence of the Basic Law. The Court of Justice is a sovereign institution for the administration of justice established by the Community Treaties that, within the framework of the competences and proceedings set out in the law, renders decisions on legal issues that are in principle final. The Court of Justice decides the cases before it on the basis of the law and legal standards and in accordance with the principle of judicial independence. Its members are required to be independent and impartial; their legal status is designed in such a way that their personal independence is guaranteed. The procedural law of the Court of Justice satisfies the requirements arising from the rule of law regarding due process; in particular, it guarantees the right to be heard, procedural rights of challenge and defence that are appropriate to the subject matter of the proceedings and the right to freely choose competent lawyers (cf. also BVerfGE 59, 63 <91 f.>).

72

bb) The Court of Justice is not an institution of the Federal Republic of Germany, but a joint institution of the European Communities. The Court of Justice is a lawful judge within the meaning of Art. 101(1) second sentence of the Basic Law to the extent that the German acts of approval to the Treaties assigned judicial functions to it. This finding results from the functional overlap between the courts of the European Communities and the Member State courts, combined with the fact that the Community Treaties have become part of Germany’s domestic legal order and must be observed, interpreted and applied by the German courts. The Treaties have been integrated into the domestic legal order by the acts of approval giving effect to European law pursuant to Arts. 24(1) and 59(2) first sentence of the Basic Law and by derived Community law enacted on the basis of the Treaties. This includes the jurisdiction of the Court of Justice with regard to preliminary ruling proceedings pursuant to Art. 177 of the EEC Treaty.

73

Art. 177 of the EEC Treaty grants the Court of Justice the power to make final determinations on the interpretation of the Treaty and the validity and interpretation of the derived acts of Community law set out therein (BVerfGE 52, 187 <200>). This exclusive power of the Court of Justice for the matters in its sole jurisdiction enshrined in Art. 177 of the EEC Treaty makes the Court of Justice a lawful judge within the meaning of Art. 101(1) second sentence of the Basic Law for the matters set out in the Treaty.

74

The Court of Justice of the European Communities is thus, in functional terms, partially integrated into the court systems of the Member States. The domestic legal orders and the Community legal order do not exist in isolation from one another, but are interrelated, open to mutual influence and overlapping in various ways (cf., e.g., Art. 215(2) of the EEC Treaty and the ‘general principles common to the laws of the Member States’ referenced therein). This becomes especially clear with regard to the allocation of jurisdiction laid down in Art. 177 of the EEC Treaty, which is aimed at interaction between the Member State courts and the Court of Justice. The purpose of this allocation of jurisdiction is to ensure that Community law is interpreted and applied in a uniform manner by all courts within the scope of application of the EEC Treaty in order to further the Treaty’s purpose to advance integration, legal certainty and equality in the application of the law (cf. CJEC, Judgment of 24 May 1977, C-107/76, ECR 1977, p. 957 <972>; Judgment of 6 October 1982, C-283/81, ECR 1982, p. 3415 <3428>).

75

cc) This is consistent with the international law obligation of the Federal Republic of Germany, following from Art. 5(1) of the EEC Treaty, to take all suitable measures to meet the obligations laid down in the EEC Treaty. Insofar as these obligations follow from Art. 177 of the EEC Treaty, the domestic courts must give effect to these obligations and adherence thereto must be ensured by the Member States. The inclusion of the Court of Justice of the European Communities, within the scope of its jurisdiction under Art. 177 of the EEC Treaty, into the scope of application of Art. 101(1) second sentence of the Basic Law particularly serves to achieve this objective.

76

dd) That the Court of Justice is a lawful judge within the meaning of Art. 101(1) second sentence of the Basic Law for preliminary rulings pursuant to Art. 177 of the EEC Treaty is not precluded by the fact that the preliminary ruling procedure is an interim procedure for which the parties to the initial proceedings are not entitled to lodge applications and which mainly serves to interpret and enforce Community law and to review its validity. The preliminary ruling procedure before the Court of Justice pursuant to Art. 177 of the EEC Treaty is part of one uniform legal dispute, the outcome of which depends on the answers to the question referred – insofar as they are decisive for the decision in the initial proceedings. The right of the individual in the initial proceedings to be afforded protection for the guarantees enshrined in Art. 101(1) second sentence of the Basic Law also encompasses adherence to the obligation to request a preliminary ruling following from Art. 177 of the EEC Treaty, irrespective of the legal nature of this procedure and its underlying legal provisions .

77

b) The Federal Administrative Court’s actions in not requesting another preliminary ruling from the Court of Justice did not amount to arbitrary decision-making.

78

aa) The Court of Justice had already given a preliminary ruling in the same initial proceedings following a request from the Federal Administrative Court. This preliminary ruling concerned the validity of Commission Regulations No. 1412/76 of 18 June 1976 and No. 2284/76 of 21 September 1976, which was the same legal issue for which the complainant subsequently sought another preliminary ruling. The Federal Administrative Court was not required to refer this question to the Court of Justice again. The substantive decisions rendered by the Court of Justice pursuant to Art. 177 of the EEC Treaty are binding on all Member State courts that deal with the same initial proceedings (CJEC, Judgment of 24 June 1969, C29/68, ECR 969, p. 165 [178]); insofar as these decisions are decisive in a given case, they must form the basis of the respective [national] court decisions in that case. This follows from the spirit and purpose of Arts. 177 and 164 of the EEC Treaty (BVerfGE 45, 142 <162>; 52,187 <201>).

79

bb) According to the case-law of the Court of Justice (Judgment of 24 June 1969, loc. cit., p. 178), an exception to this binding effect applies when a court is not sufficiently enlightened by the preliminary ruling given. On the basis of the preliminary ruling given by the Court of Justice, the Federal Administrative Court examined whether such an exception applied. It found that this was not the case. Its view is not arbitrary.

80

cc) There is no need to decide here whether preliminary rulings given by the Court of Justice also cease to be binding in general where, following a preliminary ruling by the Court of Justice, new facts emerge that might lead to a different decision of the Court of Justice, or whether this could only be achieved through revision proceedings under Art. 41 of the Statute of the Court of Justice; in the present case, the complainant did not claim that any such new facts have emerged.

81

dd) […]

82

c) For these reasons alone, a request by the Federal Constitutional Court for a preliminary ruling on the aforementioned questions in the present constitutional complaint proceedings is to be ruled out.

83

d) The Federal Administrative Court also did not violate Art. 101(1) second sentence of the Basic Law insofar as it failed to obtain a decision from the Federal Constitutional Court in judicial review proceedings pursuant to Art. 100(1) of the Basic Law, which could have, by way of a request for a preliminary ruling under Art. 177 of the EEC Treaty, prompted the Court of Justice to alter its preliminary ruling. A referral to the Federal Constitutional Court to this end would have been inadmissible; proceedings under Art. 100(1) of the Basic Law concern the constitutionality of legislation, not court decisions.

84

2. Art. 103(1) of the Basic Law has not been violated.

85

a) The claim that the Court of Justice failed to respect the complainant’s right to be heard and, therefore, its preliminary ruling could not bind the Federal Administrative Court under constitutional law is inadmissible. The complainant does not put forward indications that the Court of Justice, in the preliminary ruling procedure pursuant to Art. 177 of the EEC Treaty, generally fails to give effect to the right to be heard of the parties to the initial proceedings in a way that satisfies the minimum requirements under the rule of law for due process in court proceedings and that the Court of Justice disregards or fails to recognise the guarantees that correspond to these requirements in its Statute and Rules of Procedure. Even if it were true that the Court of Justice violated the complainant’s right to be heard, as asserted by the complainant, this would not be sufficient to draw such a generalised conclusion.

86

Only if the Court of Justice generally refused to grant the right to be heard in the manner set out above might the continuing constitutionality of the acts of approval to the Community Treaties and, thereby, the binding effect of preliminary rulings given by the Court of Justice, be called into question on the grounds of a violation of the right to be heard, in view of the general requirements placed on the transfer of sovereign powers under Art. 24(1) of the Basic Law (cf. BVerfGE 37, 271 <296>; 58, 1 <28, 40>) (cf. also II. 1. 2. below).

87

b) The Federal Administrative Court itself clearly acknowledged the complainant’s submissions and considered them in its decision; a violation of Art. 103(1) of the Basic Law can therefore be ruled out. Constitutional law also did not require the Federal Administrative Court to give effect to the complainant’s right to be heard, which had allegedly been withheld by the Court of Justice, by requesting another preliminary ruling from the same body.

88

3. The judgment of the Federal Administrative Court does not violate Art. 19(4) of the Basic Law.

89

a) Public authority within the meaning of this provision does not include legislative acts of the type challenged here (cf. BVerfGE 49, 329 <340 ff.>).

90

b) Further, the constitutional complaint is also not well-founded if the complainant’s submissions are understood as an assertion of a violation of Art. 19(4) first sentence of the Basic Law on the grounds that no legal remedy is available before German courts against preliminary rulings given by the Court of Justice pursuant to Art. 177 of the EEC Treaty.

91

On several occasions, the Federal Constitutional Court has held that Art. 19(4) of the Basic Law guarantees neither a subsidiary jurisdiction of German courts, nor ‘back-up’ jurisdiction of said courts in relation to decisions of international courts (BVerfGE 58, 1 <28 ff.> with further references); this finding also applies to decisions of the Court of Justice of the European Communities.

92

c) Art. 19(4) first sentence of the Basic Law also was not violated by the Federal Administrative Court’s determination that it was bound by the preliminary ruling given by the Court of Justice.

93

aa) It is true that Art. 19(4) first sentence of the Basic Law mandates that recourse to the courts be designed such that a comprehensive review of the law and facts of the subject matter of the proceedings by an independent and impartial court, in which the form of the decision rendered and its effect are appropriate to the legal protection sought, is guaranteed (BVerfGE 60, 253 <296 f.>). Irrespective of potential effects of the facts of the case, or of the margin of appreciation, leeway and discretion of legislative or executive authority, this guarantee in principle rules out any binding effect of the factual or legal assessments of a given case made by third parties on the courts. But this does not preclude a binding effect for decisions of other courts that is provided for by law (cf. BVerfGE 65, 132 <137 ff.>); by virtue of the functional jurisdiction of the Court of Justice pursuant to Art. 177 of the EEC Treaty, which is not objectionable under constitutional law, this applies to the binding effect of preliminary rulings given by the Court of Justice.

94

bb) The adequacy of legal protection before the Court of Justice can only become relevant with regard to a possible violation of Art. 24(1) of the Basic Law resulting from the act of approval to the EEC Treaty if the principle of the rule of law enshrined in the Basic Law, which must be observed in the transfer of sovereign powers pursuant to Art. 24(1), required that legal recourse must be available against preliminary rulings of the Court of Justice.

95

According to the Federal Constitutional Court’s established case-law, neither Art. 19(4) nor Art. 103(1) of the Basic Law, nor the general principle of the rule of law guarantee a further instance for legal recourse before the domestic (German) courts (cf. BVerfGE 34, 1 <6>; 42, 243 <248>; 42, 252 <254>; 49, 329 <343>; 54, 277 <291>). In light of the above, the current design of the preliminary ruling procedure before the Court of Justice does not fall short of the limits set by the Basic Law for the transfer of sovereign powers.

II.

96

It cannot be found that the challenged judgment of the Federal Administrative Court violates the complainant’s fundamental rights following from Art. 12(1) and from Art. 2(1) in conjunction with Art. 20(3) of the Basic Law (principles of proportionality and legal certainty).

97

1. The complainant asserts that the preliminary ruling given by the Court of Justice and the Commission Regulations No. 1412/76 and No. 2284/76, as interpreted by the Court of Justice, violate the aforementioned fundamental rights of the Basic Law and, therefore, should not have been applied by the German authorities and courts in the period in question. These challenges are inadmissible; had the Federal Administrative Court referred the regulations to the Federal Constitutional Court for judicial review pursuant to Art. 100(1) of the Basic Law, such referral also would have been inadmissible.

98

a) Art. 24(1) of the Basic Law creates an opening in Germany’s legal order that allows law from another source to become directly valid and applicable within Germany’s sovereign sphere, curtailing Germany’s exclusive claim to sovereign power within its sovereign sphere (cf. BVerfGE 37, 271 <280>; 58, 1 <28>; 59, 63 <90>). It is true that Art. 24(1) of the Basic Law as such does not provide for the direct validity and applicability of law made by an international organisation, nor does it set out the relationship between such law and domestic law, such as with regard to precedence of application. The domestic validity and applicability of international treaties and their possible precedence of application in the domestic sphere – including that of the type at issue here – do not follow ipso jure from general international law. As it currently stands, international law does not contain a general rule derived from coherent state practice and legal views that would require states to incorporate international treaties into their domestic law and to grant them precedence of application over domestic law. The precedence of application over domestic law does not ipso jure follow from an order giving effect to international law, even for treaties that require the contracting parties to bring about precedence of application over domestic law. However, Art. 24(1) of the Basic Law makes it possible to give precedence of application to treaties transferring sovereign powers to international organisations, and to the law made by such organisations, by way of a domestic order giving effect to international law providing for such precedence. This was done for the European Community Treaties, and the law made by Community institutions on that basis, through the acts of approval to the Treaties pursuant to Art. 24(1) and Art. 59(2) first sentence of the Basic Law. The direct validity of the Community regulations in Germany, and their precedence of application over domestic law, follows from the order giving effect to European law contained in the act of approval to the EEC Treaty, which also encompasses Art. 189(2) of the EEC Treaty.

99

b) Nevertheless, authorisation on the basis of Art. 24(1) of the Basic Law is subject to constitutional limits. Art. 24(1) of the Basic Law does not authorise the legislator, in transferring sovereign powers to international organisations, to abandon the identity of the constitutional order of the Federal Republic of Germany by encroaching on its constituent structures (regarding comparable limits set by the Italian Constitution and case-law of the Italian Constitutional Court, cf. A. La Pergola and P. Del Duca, Community Law, International Law and the Italian Constitution, in The American Journal of International Law, vol. 79 <1985>, p. 598 ff., p. 609 ff.). This pertains to legislative acts of international organisations that could erode the basic structures of the Basic Law, either in and of themselves, or following interpretation or further development of the underlying Treaties. The legal principles underlying the fundamental rights catalogue of the Basic Law are an essential component of the German Constitution that forms part of its basic structure and cannot be given up (cf. BVerfGE 37, 271 <279 f.>; 58, 1 <30 f.>). Art. 24(1) of the Basic Law does not permit this fundamental rights catalogue to be relativised without reservation. To the extent that an international organisation within the meaning of Art. 24(1) of the Basic Law is granted sovereign powers which, within the sovereign sphere of the Federal Republic of Germany, are capable of encroaching on the essence of the fundamental rights enshrined in the Basic Law, then – if the legal protection mandated by the Basic Law is thereby to cease to apply –, the existence and validity of fundamental rights that are essentially equivalent in terms of their substance and effectiveness to the fundamental rights protection that is inalienable under the Basic Law must be guaranteed. This generally requires that legal protection of the individual is ensured by independent courts that have sufficient jurisdiction and, in particular, the authority, to review and decide questions of fact and law appropriate to the legal protection sought. Furthermore, these courts must decide on the basis of due process that guarantees the right to be heard, appropriate rights of challenge and defence, and the right to freely choose competent lawyers. Through their decisions, such courts must also be able, where necessary, to adequately and effectively impose sanctions for the violation of a fundamental right.

100

c) In its order of 29 May 1974 (BVerfGE 37, 271 <280 ff.>), the Federal Constitutional Court held that, in view of the state of integration of the European Community at the time, the generally binding fundamental rights standards of Community law did not provide the legal certainty that these standards would be congruent with the fundamental rights standards of the Basic Law in the long term, and thus, irrespective of possible modifications, would not exceed the limits set by Art. 24(1) of the Basic Law regarding the application of derived Community law in the Federal Republic of Germany. According to that decision, the Community still lacked a parliament with direct democratic legitimation elected by universal suffrage that has legislative powers and as to which the law-making Community institutions are fully accountable. In particular, it also still lacked a codified fundamental rights catalogue; the existing case-law of the Court of Justice of the European Communities alone was not capable of guaranteeing the necessary legal certainty. The Court posited that as long as this legal certainty had not been achieved in the course of further integration of the Community, the reservation derived from Art. 24 of the Basic Law applied. On this basis, the Federal Constitutional Court held in the aforementioned decision: As long as the integration process of the European Communities has not progressed so far that Community law also contains an operative catalogue of fundamental rights that has been adopted by a parliament and is congruent with the fundamental rights catalogue of the Basic Law, a court of the Federal Republic of Germany, after obtaining a decision from the Court of Justice of the European Communities as required under Art. 177 of the Treaty, is permitted – and required – to refer the matter to the Federal Constitutional Court in judicial review proceedings if the court in question considers the Court of Justice’s interpretation of the relevant provision of Community Law to be inapplicable on the grounds that or to the extent that it conflicts with one of the fundamental rights enshrined in the Basic Law (loc. cit. p. 285). In the case before it in the order of 29 May 1974, the Federal Constitutional Court declared the referral pursuant to Art. 100(1) of the Basic Law to be admissible, but unfounded.

101

In its order of 25 July 1979 (BVerfGE 52, 187 <202 f.>), the Court expressly left unanswered the question of whether and, if so, to what extent – in view of political and legal developments that had occurred in the European sphere in the meantime – the principles laid down in the order of 29 May 1974 continued to apply without reservation to future referrals for the judicial review of provisions of derived Community law.

102

d) According to the view of the Second Senate, a level of fundamental rights protection has now developed in the sphere of the European Communities that must be considered as essentially equivalent to the fundamental rights standards of the Basic Law in terms of its design, substance and effects. All major institutions of the European Communities have since acknowledged, with legal significance, that in the exercise of their powers and pursuit of the aims of the Community, a legal obligation exists pursuant to which their actions must be guided by respect for fundamental rights, as derived in particular from the Member State constitutions and the European Convention on Human Rights. There are no relevant indications that the fundamental rights standard achieved under Community law is not sufficiently robust or only temporary.

103

aa) Through its case-law, the Court of Justice of the European Communities has given shape to this fundamental rights standard; it has consolidated and sufficiently guaranteed it.

104

The Court of Justice had previously rejected applications by parties asserting that the High Authority had violated principles of German constitutional law, in particular, Arts. 2 and 12 of the Basic Law (Stork v High Authority, Judgment of 4 February 1959, C-1/58, ECR 1958-59, p. 42 <64>). In that judgment, the Court of Justice held that it is not the function of the Court ‘to ensure respect for national law in force in a Member State, and this is true even of constitutional laws’; it added that ‘Community law, such as it arises under the ECSC Treaty, does not contain any general principle, whether explicit or otherwise, guaranteeing the maintenance of vested rights’ (Präsident, Geitling, Mausegatt, Nold v High Authority, Judgment of 15 July 1960, Joined Cases 36-38/59 and 40/59, ECR1960, p. 885 <921>). Subsequently, the Court of Justice found that the general principles of Community law, which are protected by the Court, contain fundamental human rights (cf. Stauder, Judgment of 12 November 1969, C-29/69, ECR 1969, p. 419). In the case Internationale Handelsgesellschaft (Judgment of 17 December 1970, C-11/70, ECR 1970, p. 1125 <1135>), the Court of Justice held that the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the Constitution of that state or the principles of its constitutional structure; however, the Court of Justice added that an examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded, given that respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. Whilst the protection of such rights must be inspired by the constitutional traditions common to the Member States, its protection must be ensured within the framework of the structure and objectives of the Community.

105

From the perspective of the Basic Law, the Court of Justice took the most important step in its decision in the Nold case (Judgment of 14 May 1974, C-4/73, ECR 1974, p. 491 <507>), in which it held that, in safeguarding fundamental rights, the Court is bound to draw inspiration from the constitutional traditions common to the Member States. ‘It cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the constitutions of those states.’

106

On the basis of the general principles of Community law shaped in this manner and with this substantive perspective, the Court of Justice subsequently drew on fundamental rights, in the form in which they are recognised in the Member State constitutions, as indirect, binding standards of review for the public authority exercised by Community institutions. In addition to the freedoms expressly enshrined in the Community Treaties (cf., e.g., Arts. 7, 48 ff., 52 ff., 59 ff., 67 ff. EEC Treaty), the Court of Justice placed a particular focus on those fundamental rights and freedoms that concern commerce, such as property and freedom to engage in a trade or profession (cf. Nold, C-4/73, loc. cit.; Hauer, Judgment of 13 December 1979, C-44/79, ECR 1979, p. 3727; Agricola Commerciale and SAVMA, Judgments of 27 November 1984, C-232/81 and 264/81, ECR 1984, pp. 3881, 3915). The Court of Justice has also drawn on other fundamental rights as standards of review, such as freedom of assembly, the general guarantee of the right to equality and the prohibition of arbitrariness, freedom of religion and the protection of family life (cf. Union Syndicale, Judgment of 8 October 1974, C-175/73, ECR 1974, p. 917; Ruckdeschel and others, Judgment of 19 October 1977, C-117/76 and 16/77, ECR 1977, p. 1753; BIOVILAC, Judgment of 6 December 1984, C-59/83, ECR 1984, p. 4057; FINSIDER, Judgment of 15 January 1985, C-250/83, ECR 1985, p. 142; Kupferberg II, Judgment of 15 January 1985, C-253/83, ECR 1985, p. 166; Samara, Judgment of 15 January 1985, C-266/83, ECR 1985, p. 196; Michel, Judgment of 29 January 1985, C-273/83, ECR 1985, p. 354; Defrenne III, Judgment of 15 June 1978, C-149/77, ECR 1978, p. 1365; Prais, Judgment of 27 October 1976, C-130/75, ECR 1976, p. 1589; Diatta, Judgment of 13 February 1985, C-267/83 = Europäische Grundrechtezeitschrift – EuGRZ 1985, p. 145).

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The Court of Justice has recognised the rule-of-law principles of the prohibition of excessive measures (Übermaßverbot) and of proportionality as general principles of law to be taken into account in balancing the interests of the common good pursued by the Community legal order, on the one hand, and the guarantee of the essence of fundamental rights on the other, and has addressed these principles in its established case-law (cf., e.g. the more recent decisions in cases Internationale Handelsgesellschaft, loc. cit., p. 1137; Hauer, loc. cit.; Testa and others, Judgment of 19 August 1980, C-41/79, 121/79 and 796/79, ECR 1980, p. 1979 <1997>; National Panasonic, Judgment of 26 June 1980, C-136/79, ECR 1980, p. 2033 <2059 f.>; Heijn, Judgment of 19 September 1984, C-94/83, ECR 1984, p. 3263; Fearon, Judgment of 6 November 1984, C-182/ 83, ECR 1984, p. 3677; Altöle, Judgment of 7 February 1985, C-240/83; […]). The Court of Justice has recognised the prohibition of retroactivity arising from the principle of legal certainty as well as the prohibition of double jeopardy (cf. Racke, Judgment of 25 January 1979, C-98/78, ECR 1979, p. 69 <86>; Regina v Kent Kirk, Judgment of 10 July 1984, C-63/83, ECR 1984, p. 2689; Boehringer, Judgment of 14 December 1972, C-7/72, ECR 1972, p. 1281 <1290>); it has also recognised the obligation arising from the rule of law to state reasons for individual decisions (cf. Intermills, Judgment of 14 November 1984, C-323/82, ECR 1984, p. 3809; Kingdom of the Netherlands v Commission, Judgment of 13 March 1985, C-296 and 318/82; […]). In its case Johnston v The Chief Constable of the Royal Ulster Constabulary (Judgment of 15 May 1986, C-222/84, para. 17 ff.), the Court of Justice held that the right to an effective remedy to uphold personal rights as part of the fundamental rights guarantees of Community law followed from the constitutional traditions common to the Member States and from Art. 13 of the European Convention on Human Rights. It considered the right to be heard as an essential prerequisite for a fair trial (cf. Pecastaing, Judgment of 5 March 1980, C-98/79, ECR 1980, p. 691 ff.; National Panasonic, Judgment of 26 June 1980, C-136/79, ECR 1980, p. 2033 <2058>).

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The Court of Justice has also drawn on the European Convention on Human Rights and its Protocols to determine the contents and scope of fundamental rights (cf. Rutili, Judgment of 28 October 1975, C-36/75, ECR 1975, p. 1219 <1232>; Johnston v The Chief Constable of the Royal Ulster Constabulary, loc. cit., para. 17 ff.).

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bb) On 5 April 1977, the European Parliament, the Council and the Commission of the Community adopted the following Joint Declaration (OJ C 103/1 of 27 April 1977):

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The European Parliament, the Council and the Commission,

Whereas the Treaties establishing the European Communities are based on the principle of respect for the law; whereas, as the Court of Justice has recognised, that law comprises, over and above the rules embodied in the treaties and secondary Community legislation, the general principles of law and in particular the fundamental rights, principles and rights on which the constitutional law of the Member States is based; whereas, in particular, all the Member States are Contracting Parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, have adopted the following declaration:

1. The European Parliament, the Council and the Commission stress the prime importance they attach to the protection of fundamental rights, as derived in particular from the constitutions of the Member States and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

2. In the exercise of their powers and in pursuance of the aims of the European Communities they respect and will continue to respect these rights.

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cc) On 7 and 8 April 1978, the European Council adopted a declaration on democracy (Bulletin of the European Communities 3-1978, p. 5), which states as follows:

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The election of the Members of the European Parliament by direct universal suffrage is an event of outstanding importance for the future of the European Communities and a vivid demonstration of the ideals of democracy shared by the peoples within them. The creation of the Communities, which is the foundation of the ever closer union among the peoples of Europe called for in the Treaty of Rome, marked the determination of their founders to strengthen the protection of peace and freedom. The Heads of State or of Government confirm their will, as expressed in the Copenhagen Declaration on the European Identity, to ensure that the cherished values of their legal, political and moral order are respected and to safeguard the principles of representative democracy, of the rule of law, of social justice and of respect for human rights. The application of these principles implies a political system of pluralist democracy which guarantees both the free expression of opinions within the constitutional organisation of powers and the procedures necessary for the protection of human rights. The Heads of State or of Government associate themselves with the Joint Declaration by the European Parliament, the Council and the Commission whereby these institutions expressed their determination to respect fundamental rights in pursuing the aims of the Communities. They solemnly declare that respect for and maintenance of representative democracy and human rights in each Member State are essential elements of membership of the European Communities.

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e) When compared to the fundamental rights protection enshrined in the Basic Law, the guarantee of fundamental rights protection achieved at Community level through the case-law of the Court of Justice of the European Communities may, due to its development on a case-by-case basis, still have gaps, in that certain fundamental rights principles recognised in the Basic Law as well as the type, content and scope of certain fundamental rights have not yet come before the Court of Justice. What is decisive, however, is the general attitude that the Court of Justice has adopted with regard to the binding effect of fundamental rights on the Community, the normative anchoring of fundamental rights in Community law and its normative link (in this respect) with the Member State constitutions and the European Convention on Human Rights, as well as the actual significance accorded by the Court of Justice to the protection of fundamental rights. While the aforementioned declarations of the institutions of the European Community and of the European Council are not formally part of the Treaties, and the Community as such is not a State Party to the European Convention on Human Rights, these acts are of legal significance – both within the Community and in the relationship between the Community and its Member States. They formally recognise the shared position of the Member States and the Community institutions that the Community is bound by fundamental rights guarantees that are derived from the Member State constitutions and which are applicable as primary Community law in the form of general principles of law. Given that the declarations in question constitute a unanimous expression of intent regarding the handling of the Community Treaties, they also have legal significance under international law when it comes to determining the contents of these Treaties (cf. BVerfGE 59, 63 <95>). The declarations thus also affirm the jurisdiction and obligation of the Court of Justice to protect these fundamental rights and the legal principles arising from them under Community law in accordance with its procedural law. This procedural law is, with regard to access to the Court of Justice, the types of proceedings available (along with the possibilities for Member States and Community institutions to bring a case before the Court of Justice, cf. in particular Arts. 173(2), 175(2), 176, 177-179, 184-186 EEC Treaty), the Court’s authority to conduct reviews and make decisions, the procedural principles and the effects of its decisions, designed in a way that generally guarantees effective fundamental rights protection that is essentially equivalent to the protection that is inalienable under the Basic Law.

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Given that, as set forth above, the fundamental rights guarantees enshrined in the Member State constitutions and in the European Convention on Human Rights are normatively joined with the general principles of law recognised in Community law, Community law in its substance also satisfies the requirement of a fundamental rights catalogue adopted by a parliament – which the Second Senate of the Federal Constitutional Court had deemed necessary in its decision of 29 May 1974. Firstly, since 1974, all founding members of the Community – as well as all of those that joined later – have now acceded to the European Convention on Human Rights, and their accession was approved by their respective parliaments. Secondly, the Joint Declaration of 5 April 1977, which was also adopted by the European Parliament, can be seen as a sufficient parliamentary commitment to a valid and written fundamental rights catalogue. In its decision of 29 May 1974, the Second Senate had pointed out that the Community lacked a parliament with direct democratic legitimation elected by universal suffrage that has legislative powers and as to which the law-making Community institutions are fully accountable; this was one part of the description of the state of integration at the time. This finding was clearly informed by the notion that fundamental rights protection must begin at the level of law-making and that accountability to parliament is an appropriate safeguard to ensure such protection. However, this cannot be interpreted as requiring, under constitutional law, that this state of affairs must be overcome before the withdrawal of the jurisdiction of the Federal Constitutional Court in judicial review proceedings (pursuant to Art. 100(1) of the Basic Law) concerning derived Community law can be considered.

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Given the developments in the case-law of the Court of Justice of the European Communities, it is unlikely that the normative joining of Community law and the Member State constitutions will result in a lowering of fundamental rights standards under Community law to such a degree that the fundamental rights protection afforded could no longer be considered generally appropriate under the Basic Law. In the first place, the Court of Justice is not obliged to derive the general principles of law recognised by Community law from the lowest common denominator of the Member State constitutions, that is, if such major differences between the constitutions of the Member States even exist to begin with, or could arise in the future. Rather, it can be expected that the Court of Justice will strive for the best possible development of a given fundamental rights principle in Community law. Moreover, legislative references to the European Convention on Human Rights, together with the far-reaching case-law of the European Court of Human Rights, guarantee a minimum standard of substantive fundamental rights protection that in principle satisfies the constitutional requirements set by the Basic Law. The fact that the Community as such is not a party to the Convention does not change this.

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From the perspective of the Basic Law, it does not generally prejudice the appropriateness of the fundamental rights protection guaranteed by Community law that questions regarding fundamental rights or their scope of protection that may arise at the level of Community law differ from those arising at the domestic level. In view of the objectives laid down in the Community Treaties, which, in turn, are compatible with the Basic Law, questions of how to balance the aims of the Treaties and the aims of the common good of the Community will arise in this context in a way that does not directly arise at the level of the domestic law of the Member States. The fundamental rights guaranteed by the Basic Law are one unit within the structure of the Constitution, and must be interpreted and applied in accordance with, or by weighing them against, other legal interests laid down or recognised in the Constitution. This also includes the commitment, in the preamble of the Basic Law, to a united Europe and the special forms of supranational cooperation set out in Art. 24(1) of the Basic Law. The Basic Law also allows a Community legal framework that ensures fundamental rights protection while reconciling fundamental rights with the aims and special structures of the Community; the essence of fundamental rights and of human rights is nonetheless inalienable and must also be upheld vis-à-vis the public authority of the Community. The Second Senate of the Federal Constitutional Court considers that this has now been sufficiently guaranteed in principle.

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f) In light of these developments, it must be held: As long as the European Communities, in particular the decisions of the Court of Justice of the European Communities, generally guarantee the effective protection of fundamental rights vis-à-vis the public authority of the Communities in a manner that is essentially equivalent to the protection that is inalienable under the Basic Law and, above all, its general guarantee of the essence of fundamental rights, the Federal Constitutional Court will no longer exercise its jurisdiction over derived Community law that serves as a legal basis for the conduct of German courts or authorities within the sovereign sphere of the Federal Republic of Germany. Thus, it will no longer review such law against the standard of the fundamental rights of the Basic Law and will consider referrals requesting such review pursuant to Art. 100(1) of the Basic Law to be inadmissible.

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g) Accordingly, it cannot be decided here whether the complainant’s assertion that the challenged Commission regulations, as interpreted by the Court of Justice of the European Communities, violate the complainant’s fundamental rights as laid down in Art. 12(1) and Art. 2(1) in conjunction with Art. 20(3) of the Basic Law is true. It can neither be ascertained from the complainant’s submissions, nor is it evident from the preliminary ruling given by the Court of Justice, that the Court of Justice, in interpreting the fundamental rights asserted by the complainant, is unwilling or unable to recognise and protect these fundamental rights and that the extent of fundamental rights protection required by the Basic Law is therefore generally and obviously not met at the level of Community law. In view of the foregoing, a review of the challenged Commission regulations in the present case as to their compatibility with the fundamental rights of the Basic Law is ruled out. Had the Federal Administrative Court, in the initial proceedings, referred these Commission regulations to the Federal Constitutional Court in judicial review proceedings pursuant to Art. 100(1) of the Basic Law, such a referral would have been inadmissible.

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2. The complainant did not assert that the challenged judgment of the Federal Administrative Court itself amounted to a violation of the complainant’s fundamental rights – a violation that would be independent of the binding effect on the Federal Administrative Court of the preliminary ruling given by the Court of Justice. Nor is such a violation otherwise ascertainable.

III.

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The decision was unanimous.