German Commercial Statute - Essay Example

Swarna1 Word count: 2098 P.Swarnalatha ID # 5448 Order 195439 d 6th December 2007 German commercial law Introduction European Union law has problems with its interpretation by two different constitutional bodies i.e. German Federal Constitutional court (Bundesverfassungsgericht) and European Court of Justice (Ebke, 1996). It was witnessed in several cases while reviewing by the judiciary. Even the interpretation of European law1 has created problems between other member countries and European Union in 1: EUR-Lex. The access to European law. Court of Justice. Latest documents. http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en. several contexts (Wetzel, Joseph R., 2003). This has more relevance as far as the interpretation of European arrest warrant case2 is concerned. The Court solved possible conflicts of law between the German and the European legal systems in favor of the Member States. Hence here is a need to discuss and analyze the similarities and difference between the European Court of Justice and German Federal Constitutional Court as far as the interpretation of legal issues in general including European arrest warrant case in particular. There are several similarities in interpretation of European law by European Court of Justice and German Federal Constitutional Court in commerce and basic law aspects (Dannemann, 1993). This is reflected in the amendments made to German civil codes in pursuance with the European law (Raymond Youngs, 2002). However, in some specific matters, there arises a clash between the two legal agencies. 2: Vierucci,L. 2004. The European Arrest Warrant. J Int Criminal Justice, 2: 275-285. It is argued that the exclusive jurisdiction of European Court of Justice has been severely affected by the powers of German Federal Constitutional Court as provided by the German constitution (Alter, Karen, 1996). This led to interference of German Parliament in interpretation of German law or European law. Even in several occasions it was felt that the basic law of Germans is quite differently interpreted by the two legal authorities. For example, in one of the important case, the Federal Constitutional Court of Germany discusses the merits of party’s complaint in the context of Article 38(1) of the Basic Law3, and opined that only this provision gives him standing. The judgment gave more support to interpretation of German federal constitutional court especially in European arrest warrant case. Hence it was postulated that while interpreting the basic law’s applicability, the court should not only see the provisions of Europen court of justice but also consider the provisions of German federal constitutional court. European court of justice would look in to the general issues of citizens of all the member 3: German law archive. Article 38. Elections. http://www.iuscomp.org/gla/. countries (Vermeulen and Sanders, 1998). There is a feeling that Bundestag is limited in its powers due to the fact that Germany is a member of the European Union4, which has its own legislation. However that loss is compensated by Germanys participation in the process of European legislation. Ones should not forget the fact that Germany has safeguarded the national interests by keeping a legal clause that their democratic legitimation is only ensured by the Bundestags approval of the Maastricht Treaty even in cases where decisions of the Union will often be taken by a majority with out the consent of Germany. As mentioned earlier, there are several similarities in interpretation of European law by European Court of Justice and German Federal Constitutional Court (Henkel, 2001). Their commonality in legal interpretation is mainly aimed at reducing the limitations on the majority principle with respect to the constitutions and fundamental interests of Member States (Brown, 1994). Appreciation is 4: Gate way to the European Union. Europa. http://europa.eu/. expressed for the genuine efforts of all the member countries in this direction by establishing Luxembourg compromise5 of 1966. At the same time, the Federal Constitutional Court attempted to find a legal foundation for this compromise in the principle of loyalty to the community. As a whole, these initiatives have kept the interests of all the member states of European Union. Let us analyze one important legal case in which the similarity in interpretation of legal provisions is witnesses clearly. Starting in June 1999, the suspicion arose in Belgium and Germany that the meat produced in Belgium was contaminated with dioxin. As a result, in Germany, an ordinance for the protection of consumers from Belgian pork was issued on 11 June 1999) in which the meat was declared to be unmarketable, insofar as no certificate was presented declaring the meat to be free of contaminants. In 5: Luxembourg compromise. Any reference to ‘the European Constitution’ is suspended until a new reform treaty has been adopted to replace the draft Constitutional Treaty. Europa glossary. http://europa.eu/scadplus/glossary/luxembourg_compromise_en.htm. this regard, the European Union issued an ordinance about the necessity of certificates of fitness for consumption, confirming dioxin-free goods. Finally, on 28 July 1999, identical ministry ordinances were issued in Belgium about the confiscation of fresh meat and meat products from beef and pork that, among other things, also contained provisions regarding meat that had already been exported abroad at that point in time. Hence it reflects that the provisions of European Union are very much in tune with the provisions of Germany and Belgium. The main objective of all these authorities has been the protection of interests of the customers and preventing sellers to follow unscrupulous commercial activities. Hence in a crucial case where the seller of contaminated meat products was denied to be given any compensation by German constitutional court which is in proportionate with the views expressed by the European Court of Justice. The Court of First Instance gathered evidence by questioning a number of witnesses and obtaining an official notification from the German Federal Ministry of Health and then dismissed the complaint of the seller (Juristen-Zeitung, 2005). There have been several specific areas where the interpretation of European Court of Justice and German Federal Constitutional Court differs and was witnessed in some cases too. For example, at this moment, the national Parliament of Germany interferes with the application of legal provisions of European Union as a whole. Hence there is a growing feeling that the Parliaments democratic function could be strengthened by uniform election laws in all Member States. At the same time, the indirect democratic legitimatization derived from national parliament of Germany restricts the powers of the European Union, with the consequence that substantial powers must be retained by the Bundestag6. However, the efforts must be made to arrive at the compatibility of legal principles of both the European Court of Justice and German Federal Constitutional Court with the principle of democracy. It is also opined that the reason for keeping substantial powers in the hands of the Bundestag might rather be found in the remaining `State-quality of the Federal Republic of Germany. 6: German Bundestag. http://www.bundestag.de/htdocs_e/index.html. The main differences between these two legal institutions is derived form the constitutional base it self. No doubt, the significant influence on the European Union will come from the constitutional requirement that the Bundestag decide on all relevant steps of integration. However, it has not been amended at the required rate to achieve higher integration resulting in differences in legal interpretation. At present, how can we expect that full integration of Europe is possible when a provision is kept that any step to a further integrated Europe lacking the express consent of the Bundestag will not be binding for German authorities. It is also mentioned that the European Union and its institutions, such as the Council, the Commission, the Parliament, and the Court of Justice, may exercise only those powers expressly transferred to them by the Bundestag. Hence, it is not the European Court of Justice but the German Federal Constitutional Court will ultimately decide which powers the Bundestag has transferred. Accordingly, German citizens may challenge any act of the Union which they claim to be ultra vires, and which therefore violates their right under Article 38(1) of the Basic Law. In this context, the Court emphasizes the sovereignty of Germany. Moreover, they remain `masters of the Treaties, being able to terminate membership in the Union by an actus contrarius, although the European Treaties do not mention a right to withdraw from the Union. It has been strongly felt that the higher emphasis on the power of the Federal Constitutional Court relative to the European Court of Justice7 is mainly due to judicial activism of European Court of Justice as found in case of European arrest warrant case. It is also due to the natural rivalry between German Federal Constitutional Court and European Court of Justice. There is a substantial element of difference or clash in interpretation of European Arrest Warrant that allows Article 16(2) German Basic Law to be in different proposition with Article 23(1) of Basic law of European Union. Article 16 (2) allows superior application or interpretation of German basic law for the extradition of German nationals, and it mentioned that it should not be read in the light of the European Union integration clause in Article 23(1) Basic Law. This has been inferred to reduce the complaint of violation of the democratic 7: The Court of Justice of European Communities. http://curia.europa.eu/. principle. It is also aimed at preservation of the statehood of Germany and to ensure the protection of basic human rights of German citizens (Christian Tomuschat, 2006). Overall, to maintain the German sovereignty, the higher powers of the Federal Constitutional Court8, that limits of the powers of the European Union and especially the European Court of Justice are justified (Walter  Mattli  and Anne-Marie  Slaughter, 1998). The main objective is to prevent the violations of the complainants rights under Article 38(1) of the Basic Law. As in case of Kremzow v. Republik Osterreich (Eiselein, Erin McAlpin, 1999), the exclusive jurisdiction of European Court of Justice is limited to implementation of human rights. However, there are several similarities between these two legal institutions except in specific cases. The European Union also should try to formulate those provisions, which will not affect the sovereignty of Germany. It should also emphasize on protection of principles of democracy and basic laws. 8: The Federal Constitutional Court of Germany. Bundes Verfssungs Gericht. http://www.bverfg.de/en/index.html. Conclusion Even though there are similarities in legal interpretation of European Court of justice and German federal Constitutional Court, notable differences in interpretation of some specific cases like European arrest warrant case are found (Tom Kennedy and Jacobs, 2000). Hence, the European court of justice should be provided with more judicial powers for solving the cases of citizens of all the member countries in future (Dashwood, Alan and Angus Johnston, 2001). This requires more integrated judicial structure and extensive interaction of thoughts and legal framework among the member countries (Renaud Dehousse, 1998.). The European Court of Justice should also consider the legal limits of its jurisdiction and try to arrive in commonality as far as basic law and democracy are concerned. References Alter, Karen J. 1996. The European Court’s political power, West European Politics 19: 458. Brown, Lionel Neville. 1994. Court of Justice of the European Communities. Sweet & Maxwell Publication. Christian Tomuschat. 2006. Inconsistencies – The German Federal Constitutional Court on the European Arrest Warrant. European Constitutional Law Review (EuConst). 2: 209-226 Cambridge University Press. Dannemann, G. 1993. An Introduction to German Civil and Commercial Law. London: British Institute of International and Comparative Law. Dashwood, Alan and Angus Johnston. 2001. The Future of the Judicial System of the European Union. Hart Publication. Eiselein, Erin McAlpin, Kremzow v. Republik Osterreich. 1999. Case C-299/95 (E.C.J. 1997): a case for excluding human rights issues from the jurisdiction of the European Court of Justice, Denver Journal of International Law and Policy, 27(4): 583. Henkel, Cristoph. 2001. Constitutionalism of the European Union: judicial legislation and political decision-making by the European Court of Justice, Wisconsin International Law Journal, 19(2): 153.Ebke, W.F. 1996. Introduction to German Law. Kluwer Law International. Juristen-Zeitung. 2005. Decisions of the Federal Court of Justice (Bundesgerichtshof). VIII ZR 67/04, 844. Bundesgerichtshof Dated 2nd March 2005. Raymond Youngs. 2002. Source book on German law. Cavendish Publication. P:764. Renaud Dehousse. 1998. The European Court of Justice: the politics of judicial integration. New York: St. Martins Press, P: 213. Tom Kennedy, Brown and Jacobs. 2000. The Court of Justice of the European Communities. Sweet & Maxwell Publication. Vermeulen, A., & C.M.F. Sanders. 1998. Guide to the European Court of Justice, European Information Association. Walter  Mattli  and Anne-Marie  Slaughter. 1998.  Revisiting the European Court of Justice. International Organization, 52: 177-209, Cambridge University Press. Wetzel, Joseph R. 2003. Improving Fundamental Rights Protection in the European Union: Resolving the Conflict and Confusion between the Luxembourg and Strasbourg Courts, Fordham Law Review 71: 2823. Read More