The Case of Manfred Brunner v The European Union Treaty - Assignment Example

The case of Manfred Brunner v The European Union treaty Materials of the case: The materials involved in this case were the Maastricht Treaty vis a vis the German Constitution and the provisions therein ensuring democracy and freedom for individual German citizens. This case concerned the doctrine of supremacy of European Community law over the provisions of the German Constitution and the rights guaranteed to individual citizens. It opened a way for Germany to ratify the Maastricht Treaty and laid out certain constitutional guidelines on the basis of which certain areas of commercial and constitutional law of individual member states of the European Union did not necessarily have to fall within the purview of Community Law. The adoption of a single currency and the monetary policy of the EMU were the issues at stake as appearing in conflict with the functions and powers of the Bundesbank. The provisions of the Act of Accession in the Maastricht Treaty and the degree of their applicability within the individual constitutions of the member states of the European Union were established in this case. The European Charter of Fundamental Rights was also a relevant document in this case, as established through a joint proclamation by the European Parliament, the Council and the Commission at Nice, which was to apply to the fundamental rights of all member states of the European Union. 2. Legal Issues involved: The major legal issue involved was the degree of supremacy of European Community law over German constitutional law. The conflict arose between the monetary policy of the EMU as impacting upon the democratic legitimacy of the Constitution of Germany. Article 53 of the European Charter of Fundamental Rights states; “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental rights as recognized,…..including…..the member States Constitutions.” The legal issue at stake was the protection of individual rights of a German national against infringements caused by acts passed by the German authorities in accordance with European Community law. The issue was how far the provisions of the Act of Accession could be applied in terms of EU Monetary policy and the extent to which they would be binding in the context of German sovereignty. The German Constitutional Court had to consider the issue of the functioning of State organizations which could be mandated and fashioned by the will of the people and could not be governed by an external entity such as the European Treaty. 3. By what court was the case decided and how did it get there? The Second Senate of the Federal Constitutional Court of Germany BVerfG was the Court that tried the case and handed out the decision that challenged the validity of the Maastricht treaty in the light of German democratic sovereignty. This Court was the best suited to deal with the case, since it involved an issue of sovereignty of the Constitution of Germany in ensuring the democratic rights of individual citizens vis a vis the provisions of the European Treaty that had resulted in German Government action being taken to align the country’s monetary policy and the common currency along the lines of the European community mandates. The 4. What were the claimant’s arguments? The claimant’s arguments centered around the validity of the treaty of Maastricht and the mandate to introduce a centralized monetary policy of the EMU that would also be enforceable in Germany through the Bundesbank, which would in effect serve as a centralized bank that would be transferred to the ECB through an integration programme. The claimant contended that placing monetary policy into the hands of a centralized authority/bank which would be allowed to function on an autonomous basis on the basis of the dictates of the European community, would go against the principles of democracy of the member states. The claimant contended that the provisions of the Act of Accession for the European Charter did not justify overriding the democratic sovereignty of the Constitution of Germany and the rights of individual citizens to implement state regulations according to the policies preferred by the people. The claimant also contended that according to the Maastricht Treaty, one of the constitutional principles that would become applicable to the bank would entail the element of irreversibility in fixing of convergence of interest rates, in the transfer to a ECB. 5. What were the defendants’ arguments The Defendant’s arguments centered around the need to introduce a centralized policy that would be applicable to all the member states. Member States of the European Union had established the Community of states with the intention to curtail or modify some of their democratic rights in the interest of developing a new legal order in the field of international law that would be uniformly applicable to all member states. Moreover, the acceptance of an independent centralized bank is a better guarantee of price stability in the country and this had been tested and proven to be true within the context of the German system as well. The Court also found this argument of the Defendants acceptable and included it in its decision (Page 104). 6. What was the final decision (with reference to decisions by any lower courts involved) Through this decision, the Court laid out the guidelines for the implementation of the Maastricht Treaty. The Court held that the provisions of the German Constitution do not forbid the powers and functions of the Bundesbank from being transferred to the ECB. This power is not in itself a violation of basic rights, since protection of fundamental rights is a cooperative enterprise between the ECJ and national Constitutional Courts (p 78-79). The Court also held that a modification of the democratic principle in the case of Bundesbank was acceptable since price stability could be better ensured through a central independent bank. However, the Court also clarified that exercise of state powers is derived from the people of the State and a sufficient degree of democratic legitimacy is achieved (pp 84-85). The most important factor arising out of this decision is that the Court highlighted the fact that while the rights and duties of member states are spelt out in the Treaty and are actionable through the Act of Accession, any interpretation of the Treaty that provides for its extension into areas not previously covered under the Treaty would not necessarily produce any binding effects upon Germany (p 105). In this connection, the Court stated as follows: “Thus, if European institutions or agencies were to treat or develop the Union Treaty in a way that was no longer covered by the Treaty in the form that is the basis for the Act of Accession, the resultant legislative instruments would not be legally binding within the sphere of German sovereignty…….. The validity and application of European law in Germany depend on the application-of-law instruction of the Accession Act. Germany thus preserves the quality of a sovereign State in its own right and the status of sovereign equality with other States within the meaning of Article 2(1) of the United Nations Charter of 26 June 1945.” (Paras 49,54 and 55) This decision is therefore significant in that it establishes the fact that Member States questioned the principle of supremacy of the EU Courts and the extension of the Treaty to incorporate legislative instruments that had not been spelt out in the Act of Accession. This was a landmark decision in that it provided a way for Germany to ratify the Maastricht Treaty, since it was one of the last countries to do so. 7. Do you agree or disagree with the final decision? Give full reasons for your conclusions I disagree with the decision of the Constitutional Court in Germany and the contention that a centralized bank is a better guarantee of price stability and that the democratic principles can therefore be modified to incorporate the provision for a constitutionally independent Bundesbank. This decision of the Court is based upon an assumption that such a solution would be democratically acceptable within Germany but this may not necessarily be the case. While there is no doubt that a uniform policy has to be implemented within the European Community, the standards that are determined must be acceptable to the people of the member States. The national Constitutions have been established to reflect the will of the people and the democratic principles of Government for and by the people. By introducing an autonomous bank that is constitutionally independent of the will of the people of that nation, the German Constitutional Court has indicated its preference for price stability over and above the principles of accountability of State governed bodies to the people who have democratically elected them to power. The decision indicates a watering down of democracy in order to accommodate the laws laid down by the European Communities and to accommodate economic aspects. I do not contest the fact that a uniform policy is the best way to ensure stability and fairness in the functioning of the European Commonwealth. There is no doubt that allowing one State to be like a maverick and adhere to its own principles and rules which may not be acceptable to other Member States is not conducive towards international cooperation and amity. However, any such uniform policies are developed which are to apply to the entire body of European member States should be developed through a referendum, or other means whereby the goals and processes of democracy and democratic sovereignty are not scuttled, so that an unacceptable standard is imposed upon the people of any member State. It is not for the European Courts to extend the power of their jurisdiction into areas that were not originally handed over to them through the principles forming the European Treaty. Any ad hoc or arbitrary legislation that is introduced whereby the power is withdrawn from the hands of the people in favor of imposition of an external rule of law is unacceptable from the point of view of democratic sovereignty and needs to be shunned. I therefore appreciate the qualification provided by the German Constitutional Court whereby ratification of the Maastricht Treaty would involve only the principles agreed to as implementable under the Act of Accession. While certain concessions may be made by the people of the member states in order to develop policies that can be uniformly applied to all member States, this cannot be construed to mean that the European Court of Justice or any other court can impose upon a Member State rules and regulations that are not acceptable to a majority of the people of that State. Federalization of community law is not acceptable, the European Union is a comity of nations that operate through consensus among its member States and not through the imposition of an arbitrary centralized European authority. 8. Compare and contrast this case with any one English case, explaining the differences This case may be compared to the case of Factorame v the Secretary of State for Transport, wherein national constitutional principles arose in conflict with community law and the dictates laid down therein. In England, the situation is somewhat different from what it is in Germany. Sections 2 and 3 of the European Communities Act of 1972 as amended, ensures that it is European Community law that always has supremacy over national laws. Courts in the U.K. do not have the necessary latitude to question any of the decisions or principles laid down by the European Courts, in particular the ECJ, neither is Parliament or the executive body at liberty to function in a manner that is not accord with Community Law. In this case, the Factortame respondents were able to successfully prove that they had been unlawfully prevented by Britain from fishing in British waters and that they were entitled to damages to compensate them for this violation of their rights. In view of the fact that the European Court of Justice had ruled that English Courts could suspend an Act of Parliament if it was found to violate Community law, the Parliamentary provisions disallowing fishing in the disputed waters was considered to be superseded by European Community Law and therefore, national law was to be subordinated to European Community law. Therefore, in this case, a verdict such as that allowed in the German case would not have been possible, since the supremacy of European community law has already been established in the United Kingdom. The principles of democratic sovereignty in the UK would therefore necessarily be subordinated to the principles of European Community law and it is not possible for English Courts to offer any effective opposition to the decisions or guidelines of European Courts. 9. Do you prefer the German case or the English case. Give full reasons for your conclusion. I prefer the German case to the English case. I believe that the European Union has been founded on the principles of consensus among the member States and the people of individual member States have the right to exercise their franchise and expect that their Governments will determine policies in accordance with their mandate. The ECJ has increasingly been moving into areas that are beyond the scope of its jurisdiction and has been influencing the course of national law through an imposition of European law. In some cases, the decisions that have been spelt out by the European Court of Justice have entailed a great deal of inconvenience and problems of implementation for the Member States. The issue of conflict of national laws that have been framed through democratic assent vis a vis the superiority of European Community law that has been developed through the decision making power of the European Court of Justice is not an acceptable proposition. There are some bodies within the European community such as the Electoral Commission that are exempt from the authority of the ECJ while national Governments are expected to be subject to the decisions laid out by the ECJ. I am more in agreement with the principles that were laid out by the German Constitutional Court which stated that any extensions of the provisions of the Treaty need not be binding upon the member States. This will ensure that the sovereignty of State Governments is not unduly interfered with by the ECJ and similar bodies within the European Union which are not formed through democratic election by the people of the Member States. In so far as matters pertaining to the functioning of a State are concerned, it must be left to the Governments of individual Member States to implement and enforce laws as they see fit and as they are led to do by the people of the State. The European Court of Justice and other law making bodies can at best function as guiding institutions that can point out the right way to go, but it must be left up to the member States to implement those provisions in the manner that is compatible with State Sovereignty and the will of its people. I do not believe that the legitimacy of European Community law would entail its supremacy in every instance, as is the case in the UK at present, so that national sovereignty is in a crisis situation. Reference: * Case of Manfred Brunner and Others v. the European Union Treaty, Bundesverfassungsgericht (2. Senat) 12.10.193, Cases 2 BvR 2134/92 and 2159/92. The English translation of this case available in (1994) 1 CML Reports 57, Vol 69(2), pp. 57-108. * Case of Factortame v Secretary of State for Transport [1989] 2 All ER 692; Factortame v Secretary of State for Transport (No 2) [1991] 1 AC 603 Read More