Application for a preliminary injunction against free trade agreement rejected

Press Release No. 76/2019 of 07 November 2019

Order of 7 November 2019
2 BvR 882/19

In an order published today, the Second Chamber of the Second Senate of the Federal Constitutional Court rejected a further application for a preliminary injunction seeking to bar the German representative in the Council of the European Union from approving the conclusion of the EU-Singapore Free Trade Agreement (EUSFTA). As far as the principal proceedings are concerned, that constitutional complaint is neither inadmissible from the outset nor manifestly unfounded, given that at the current stage of proceedings it appears at least possible that the ultra vires challenge could be successful. In this regard, the decision of the Council of the European Union to conclude EUSFTA might indeed be qualified as an act manifestly exceeding the competences of the European Union and encroaching on the Basic Law’s constitutional identity, protected by Art. 79(3) of the Basic Law (Grundgesetz – GG).

In such a situation, rights under Art. 38(1) first sentence, Art. 20(1) and (2) in conjunction with Art. 79(3) GG can in principle be safeguarded by barring the Federal Government from giving its approval in the Council until a decision in the principal proceedings has been rendered.

However, the applicants expressly did not file an application with this objective. Rather, they emphasised that they do not seek to suspend decision-making in the Council of the European Union, nor do they seek to prevent the entry into force of EUSFTA. In their application, they merely seek measures that they consider suitable for guaranteeing that the Federal Republic of Germany will be able to leave the free trade agreement in case their constitutional complaint is successful in the principal proceedings.

Yet the measures sought by the applicants cannot ensure that the Federal Government and the German Bundestag will be able to exercise their responsibility with respect to European integration (Integrationsverantwortung). Given that – unlike the CETA free trade agreement – EUSFTA is an “EU-only” agreement, it does not require ratification by the Member States, and the Federal Republic of Germany itself is not party to the agreement. Therefore, the Federal Republic of Germany does not have the legal capacity to unilaterally ensure that the safeguards for exercising the Federal Government’s and the Bundestag’s responsibility with respect to European integration, which may be required in the event that the constitutional complaint is successful, are put in place.

·         To the extent that the applicants seek to oblige the Federal Government to express, in the approval procedure, reservations regarding the distribution of competences between Member States and the European Union in the areas of shipping, sustainability and the amendment powers of the bodies established by the agreement, this measure is unsuitable given that the EU Treaties do not provide for such reservations and potential unilateral declarations cannot affect the validity and the binding effect of a Council decision.

·         To the extent that the applicants seek to oblige the Federal Government to obtain an undertaking from the Council of the European Union to the effect that the Council will not adopt decisions pursuant to Art. 218(9) TFEU regarding draft decisions of bodies established under the agreement that have legal effects until the Federal Constitutional Court has rendered a decision in the principal proceedings, this measure is unsuitable given that, in light of the qualified majority requirement of Art. 218(8) TFEU, the Federal Government does not have the legal capacity to obtain such an undertaking, at least not unilaterally.

·         To the extent that the applicants seek to oblige the Federal Government to obtain a binding declaration from the Council of the European Union and the European Commission according to which the Federal Republic of Germany will be able to leave the agreement and that the European Union will terminate EUSFTA if this is required under German constitutional law, this measure is also not suitable for safeguarding the applicants’ right to democracy. In this respect, too, the Federal Government might possibly be able to prevent a decision from being taken in the Council, but it cannot enjoin the Council and the European Commission to issue binding declarations. This applies to a potential future termination of the agreement.