‘We only want what the Germans have’ is an unlikely paraphrase of the demands of some of those wishing to achieve human rights reform and/or EU reform in the United Kingdom. Germany, they seem to argue, does not require its courts to follow the European Court of Human Rights (ECtHR) and the Germans make sure that their national constitutional law prevails over both the ECHR and EU law (see for instance the Conservative party’s proposals for human rights reform or the mention of Germany by Martin Howe QC during a House of Lords evidence session). Even David Cameron mentioned Germany in the speech outlining his EU renegotiation demands, though he was more cautious, expressly stating ‘we need to examine the way that Germany and other EU nations uphold their constitution and sovereignty’.

The aim of this blog post is to outline the position of both EU law and the ECHR in German constitutional law. It will be shown that 1) the situations in which a German court, including the Federal Constitutional Court (FCC), is permitted to call into question EU law or ignore the ECtHR are very narrowly defined; 2) that in some of these narrowly defined scenarios rulings of the ECtHR and EU law can only be ignored in order to allow for a stronger fundamental rights protection – arguably the opposite of what human rights reformers in the UK want; and 3) that it would be difficult to transplant the German solution into the constitutional law of the UK.

As is well known, Germany has a codified constitution (the Basic Law/Grundgesetz – GG) containing a catalogue of fundamental rights binding on – and thus restricting – all three state powers. It also has the FCC, which has the power of constitutional review and the power to strike down legislation incompatible with the constitution. It is possible for individuals to access the FCC directly by way of a constitutional complaint. In this sense its constitutional set-up differs dramatically from that of the UK with its uncodified and partly unwritten constitution at the heart of which lies the sovereignty of Parliament.

The position of the ECHR and decisions of the ECtHR

Germany, like the UK, has a dualist system when it comes to the effect of treaties in the German legal order. Article 59 (2) GG requires that treaties must be enacted as federal law before they become binding (NB: don’t be fooled by Article 25 GG – it only applies to ‘general rules of international law’, i.e. custom and general principles, but not treaties). Hence from the perspective of domestic German law the ECHR, as an international treaty, has the same legal status as a federal act of parliament so that the rights contained in the ECHR can be invoked in German courts like any other federal act of parliament. This helps to explain why the ECHR does not play a huge role in German legal practice. It is not routinely referred to by German courts in fundamental rights cases as the constitutional guarantees suffice. They largely parallel the rights of the ECHR (albeit with a difference in wording) and go further in some instances. In fact, by contrast to the ECHR – which is only an act of parliament – they can be invoked to invalidate an act of parliament – a procedure which any court can instigate by way of a reference to the Federal Constitutional Court (Article 100 GG).

Of course this does not mean that the ECtHR does not find against Germany. To the contrary: given that the domestic courts often do not apply the ECHR directly, this does happen, and can even happen with respect to judgments by the FCC (see e.g. von Hannover v Germany).

So what happens if there is a conflict between the German legal order and the ECHR? Technically speaking the constitution prevails: adopting the domestic perspective, the ECHR is only an act of parliament and can therefore not affect the interpretation of the GG. This means in theory that the Basic Law (as interpreted by the FCC) has the final say in these matters. Yet in practice this does not have a serious impact as the FCC made it clear in a decision concerning preventive detention: the ECtHR’s decisions must be used as ‘interpretative aids’ for the interpretation of the fundamental rights contained in the Basic Law. The only limit to this consists in potential restrictions of the protection of fundamental rights which may result from the ECHR. The only conceivable cases are multipolar cases in which fundamental rights are balanced against each other (e.g. privacy v freedom of press). That decision marks a partial departure (at least in that it is phrased in a much more ECtHR-friendly manner) from the earlier Görgülü judgment. But even in this judgment – which, in contrast to the former, is available in translation, which may be a reason for misunderstandings by lawyers in the UK – the FCC was clear in that it required national courts to consider ECtHR decisions.

This shows that the legal situation in Germany results in the ECHR being used to extend (an already extensive) protection of fundamental rights. There is no evidence in the case law of the Federal Constitutional Court that other concerns, such as a notion of national security independent of that under the ECHR, could be used to override the minimum standards of fundamental rights protection set by the ECHR.

The position of EU law in Germany: two strands of FCC case law

Turning to EU law, the situation is slightly more complex. First of all, the EU Treaties are incorporated into German law on the basis of Article 23 GG, which requires that a new Treaty is approved by a 2/3 majority in both houses of the German parliament. This is the same majority as is required for amendments to the constitution – this means that the EU Treaties have the same legal force as a constitutional amendment. Thus the only limitation on the legislator consists in the eternity clause laid down in Article 79 (3) GG, which does not allow certain foundational principles of the GG to be undermined, such as human dignity, democracy, federalism, and German statehood. This has given rise to the first strand of the Federal Constitutional Court’s case law concerning the EU. Its most recent major iteration was the Lisbon judgment. Here the Federal Constitutional Court held the Lisbon Treaty to be compatible with the Basic Law, but highlighted that there were important limits to further integration. Importantly, it also reserved for itself the power to review an EU institution has acted ultra vires (i.e. whether the EU has acted outside the powers conferred upon it – this was the basis of the FCC’s reference in the OMT case) and whether an EU act violates the constitutional identity of the Basic Law laid down in Article 79 (3) GG. But very importantly, in a subsequent decision the FCC has restrained its own powers further by 1) stipulating a requirement that it first ask the European Court of Justice (ECJ) for a preliminary ruling; and 2) having highlighted that such review must be carried out in a way that is friendly towards European law, by requiring that the ultra vires action be manifest.

There is a second (much older) strand of case law, which deals with fundamental rights protection in the EU. The constitutional complaints brought to the FCC under this strand claimed that a concrete EU act (e.g. an EU Regulation) was in violation of the fundamental rights enshrined in the Basic Law. After initial reluctance (so-called Solange I decision), the FCC ruled that the fundamental rights protection offered under EU law was substantially similar to the protection required under the Basic Law; and as long as this was the case, the FCC would no longer exercise its jurisdiction to decide on the compatibility of such an act with German fundamental rights (Solange II decision). This means that a complaint brought to the FCC alleging a violation of German fundamental rights is inadmissible, unless the applicant can show that the degree of protection offered under EU law has become inadequate – a feat that is hardly achievable in practice, particularly given the entry into force of the EU Charter of Fundamental Rights.

How could a transplant be achieved?

So where does this leave those in the UK who would like to be a bit more like Germany? A key difficulty with transplanting the German ‘solution’ into the UK context is that the situation under German law is not a premeditated one: it results from the constitutional set-up – pre-dating both the ECHR and the EU – and the way this set-up was interpreted by the FCC. This means that it must be conceived of as a power game between independent judiciaries (FCC and ECJ). By contrast, if similar limits were now introduced into UK legislation, this would add a political dimension to this resulting in a political power game between Parliament and not merely the ECJ, but also the European Commission, which might well take the UK to the ECJ for infringement of the Treaties. One can be relatively certain that if the Germans went back to the constitutional drawing board they might try to avoid the potentials for clashes.

Be that as it may, what parts of the German solution could conceivably be imported into the UK context (assuming that the basic features of the UK constitution remain unchanged)? As far as the ECHR and judgments of the ECtHR are concerned the situation in Germany is not too different from that in the UK in that the FCC, much like section 2 of the Human Rights Act (HRA), requires domestic courts, including itself, to use ECtHR decisions as interpretative aids. One could even go further and conclude that because ECtHR decision are used to inform the interpretation of the fundamental rights contained in the Basic Law, they can even be relied upon indirectly to help strike down legislation. That, presumably, is not what the critics of the HRA would like to replicate. The same is probably true for the only admissible possibility of deviating from the standards set by the ECtHR: to offer better protection of fundamental rights. Hence there is not much that they would really want to copy from the Germans.

Turning to EU law, the Solange II solution means that in practice EU law is immune from fundamental rights challenges based on the Basic Law, so that the adoption of a similar solution would not make much sense. The assessment is a little more difficult where the introduction of an ultra vires review or constitutional identity review is concerned. As for the latter, it would be important to not equate constitutional identity with parliamentary sovereignty as this would potentially make all EU law subject to compatibility with acts of Parliament. This is certainly not the case in Germany – as identity review is limited to the very foundations of the constitution – and would make EU membership of the UK unworkable in practice. Ultra vires review could, perhaps, be introduced by allowing national courts to only apply a piece of EU legislation, e.g. where they are satisfied that the EU has acted within its competence. Of course, such a solution could potentially lead to a gross exaggeration of the situation in Germany. After all, up until this day, no EU act has ever been declared inapplicable in Germany for this reason – though this might admittedly change with the FCC’s pending OMT ruling. In addition, the FCC is the only court competent to make such an assessment and only after having requested a preliminary ruling from the ECJ. This, of course, the UK courts are already capable of doing. In addition, one could already see the germ of a similar jurisprudence to the FCC’s in a dictum in the Supreme Court’s HS2 ruling (for comment see e.g. here). Moreover, explicitly introducing the possibility of such review now (i.e. 40 years into EU membership) would constitute a clear breach of EU law: after all, the ECJ reserves the privilege of reviewing the compatibility of EU legislation with the EU Treaties for itself.

On closer inspection, the German solution may therefore not be as appetising as it might seem. It tends to be mainly symbolic and the expression of a long-standing and slowly developed judicial compromise between the ECJ and the FCC rather than the result of thoroughly considered constitutional drafting. By contrast, the UK’s solution is by far neater, clearer and therefore in many respects superior.

Tobias Lock is a lecturer in EU law and co-director of the Europa Institute at the University of Edinburgh. He would like to thank Philip Pavel for insightful comments on an earlier draft. All errors remain, of course, the author’s.

(Suggested citation: T. Lock, ‘Human Rights and EU reform in the UK and the ‘German question’’ U.K. Const. L. Blog (25th Nov 2015) (available at https://ukconstitutionallaw.org/))