Unsuccessful application in Organstreit proceedings concerning the EU-Canada Comprehensive Economic and Trade Agreement (CETA)

Press Release No. 18/2021 of 02 March 2021

Judgment of 2 March 2021
2 BvE 4/16

In its judgment pronounced today, the Second Senate of the Federal Constitutional Court dismissed an application in Organstreit proceedings (dispute between constitutional organs) lodged by the parliamentary group in the German Bundestag DIE LINKE. In this application, the parliamentary group challenges a statement of position relating to the EU-Canada free trade agreement (CETA), which the Bundestag adopted on 22 September 2016. The application is inadmissible given that the applicant demonstrated and substantiated neither a possible violation of its own rights nor a violation of rights of the Bundestag that the applicant could invoke by vicarious standing.

In the present proceedings, the Second Senate did not decide on the constitutional complaints and a further application in Organstreit proceedings concerning the signing, the provisional application and the conclusion of CETA. These are dealt with in separate proceedings.

Facts of the case:

In May 2016, the parliamentary group in the German Bundestag DIE LINKE, as well as ten members of Parliament belonging to that group, filed a motion requesting that the Bundestag direct the Federal Government, when representing Germany in the Council of the European Union, to vote against the proposed Council decision on the provisional application of CETA.

In July 2016, the parliamentary group in the German Bundestag DIE LINKE, as well as eight of its members, filed a motion requesting that the Bundestag direct the Federal Government to make sure that CETA is treated as a mixed agreement and that it is submitted to a vote in the Bundesrat given that it affects Member State competences and, within the federal order, encroaches on the affairs of the Länder.

In September 2016, the parliamentary group DIE LINKE, as well as eleven of its members, filed another motion requesting that the Bundestag, pursuant to Art. 23(3) of the Basic Law (Grundgesetz – GG), declare that the signing and the provisional application of CETA in its present form violate EU law and the Basic Law. They argued that the Council decisions proposed by the European Commission constituted ultra vires acts and violated Germany’s constitutional identity. They also asserted that the provisional application of CETA were only permissible for areas falling within the exclusive competence of the EU.

The motions filed by the parliamentary group DIE LINKE and its members were rejected by the Bundestag. On 22 September 2016, the Bundestag – the respondent in the present proceedings – adopted a motion “in exercising its responsibility with regard to European integration” (Integrationsverantwortung), in which the Federal Government is requested to, inter alia, continue to provide comprehensive information to the Bundestag on all matters concerning CETA in a timely manner. The Bundestag also requested that the Federal Government pave the way for treating CETA as a mixed agreement. Moreover, it instructed the Federal Government to ensure that exceptions to provisional application are agreed between the Council, the European Commission and the European Parliament in areas falling into the competences of the Member States, which includes the area of investment protection.

By judgment of 13 October 2016 - 2 BvR 1368/16 inter alia - the Federal Constitutional Court rejected the application for preliminary injunction concerning the provisional application of CETA on condition that the reservations set forth in the reasons attached to that judgment were met. In its reasoning, the Court held that it could neither be ruled out that the Council decision on provisional application would be qualified as an ultra vires act in the principal proceedings nor that it would be found to encroach on the constitutional identity enshrined in Art. 79(3) GG. The Court questioned whether the European Union had, inter alia, a treaty-making competence with regard to portfolio investment, investment protection, international maritime transport services, the mutual recognition of professional qualifications and labour protection. Furthermore, it could not be ruled out that the Council decision on the provisional application of CETA might also be qualified as an ultra vires act to the extent that CETA is designed to transfer sovereign powers to institutions under the system of tribunals and committees established under CETA. However, the Court held that an ultra vires act could be avoided by providing for exceptions to the provisional application of CETA. The Court also made clear that it had to be ensured that Germany could unilaterally terminate the provisional application of CETA.

CETA was ultimately treated as a mixed agreement by the EU institutions. In October 2016, the Council of the European Union adopted the decision on the signing and provisional application of CETA. Parts of the agreement, including the provisions on investment protection, were exempted from provisional application.

The applicant seeks a declaration that the position of 22 September 2016 adopted by the respondent violates the Basic Law and rights of the Bundestag given that the respondent did not confer a specific mandate on the German representative in the Council by adopting a separate ‘authorising act’ (Mandatsgesetz) and accompanying legislative instruments to that effect.

Key considerations of the Senate:

The application is inadmissible.

1. The applicant derives from Art. 23(1) GG the requirement that a separate authorising act be adopted to confer a specific mandate on the Federal Government in EU matters. However, the Basic Law does not recognise any such requirement, nor could an authorising act in this sense provide legitimation to an ultra vires exercise of sovereign powers by institutions or bodies of the European Union or other international organisations. It can therefore be ruled out from the outset that the lack of a specific authorising act adopted by Parliament violates the applicant’s rights or rights of the Bundestag. This also holds true with regard to the other accompanying legislative instruments sought by the applicant regarding the provisional application of CETA.

2. The application cannot be interpreted in a different way. The applicant did not assert that the Bundestag, in adopting its position of 22 September 2016, failed to sufficiently exercise its responsibility with regard to European integration. Moreover, the applicant did not substantiate that the Bundestag’s statement of position failed to satisfy the constitutional requirements governing the exercise of Parliament’s responsibility with regard to European integration.

a) Like all constitutional organs, the Bundestag bears a responsibility with regard to European integration. Art. 23(2) and (3) GG provide that the Bundestag participates in matters concerning the European Union. Parliament has the right, and the duty, to effectively exercise its responsibility with regard to European integration. In this respect, the Bundestag in principle has wide political latitude, the limits of which are only exceeded if it fails to take any action at all, if legislative and other measures taken are evidently unsuitable or completely inadequate, or if they fall significantly short of achieving the aim of the protection.

b) Art. 23 GG confers upon the Bundestag far-reaching participation rights in relation to matters concerning the European Union. While Art. 23(2) first sentence GG contains a general mandate to participate in such matters, Art. 23(2) second sentence GG imposes a duty on the Federal Government to provide comprehensive information to the Bundestag as early as possible. In particular, before participating in legislative decision-making of the European Union, the Federal Government must provide the Bundestag with the opportunity to submit a statement and take into account this statement – which is usually adopted in the form of a parliamentary resolution – in its negotiations.

The Bundestag can take a wide array of measures. It can provide ex post legitimation to measures by which EU institutions, bodies, offices and agencies have exceeded their competences. Should that not be possible or wanted, it is incumbent upon the Bundestag to use legal or political means to work towards the rescission of acts that are not covered by the EU integration agenda (Integrationsprogramm) and to take suitable measures to restrict as far as possible the domestic effects of such acts.

Such measures include, in particular, bringing legal action before the Court of Justice of the European Union (Art. 263(1) TFEU) – through the Federal Government if necessary – and contesting the respective act vis-à-vis the acting authorities or their supervising bodies; the Bundestag may also exert its influence on the Federal Government’s voting policy in the decision-making bodies of the European Union, including the exercise of veto rights, the proposal of treaty amendments (cf. Art. 48(2) and Art. 50 TEU), as well as the providing of instructions to subordinate authorities to not apply the measure in question. In this context, the Bundestag can exercise the powers it is afforded to supervise the actions of the Federal Government in EU matters, such as the right to ask questions, to debate and to adopt decisions. In cases in which the Federal Constitutional Court has found that a measure constitutes an ultra vires act or affects Germany’s constitutional identity, the Bundestag must in any case conduct a plenary debate. Decisions of considerable significance must generally be preceded by a procedure that requires Parliament to hold a public debate on the necessity and scope of the envisaged measures.

c) Before adopting its position of 22 September 2016, the Bundestag had held exhaustive discussions on CETA over a considerable period of time. It had debated CETA in several plenary sessions and many committee meetings, heard experts and liaised with the responsible actors in Canada and the EU. The statement of position at issue here, which is a statement of position within the meaning of Art. 23(3) GG, clearly contains substantive directions for the Federal Government’s actions in the Council of the European Union. The Bundestag’s position emphasises that in the areas falling within Member State competences, CETA may under no circumstances be applied provisionally. This reservation expressly refers, but is not limited, to investment protection. In its statement of position, the Bundestag calls on the Federal Government to ensure that provisional application will be subject to exceptions in areas where this is necessary on the grounds that competences of the Member States are affected.

In light of the foregoing, the applicant failed to demonstrate, nor can it otherwise be ascertained, why and how the respondent supposedly violated its Integrationsverantwortung (responsibility with regard to European integration) by adopting its position of 22 September 2016.