Integration und Verfassung

In its authoritative interpretation by the German Federal Constitutional Court, the Basic Law (Grundgesetz, the German Constitution) sets limits to European integration. This also applies where integration takes place on the basis of the European Treaties through their interpretation and application. The democratic principle demands that »sufficient space is left to the Member States for the political formation of economic, cultural and social living conditions« (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts - BverfGE 123, 257/357, 358). As long as this is the case, the structure of democratic legitimation of the EU need not be completely the same as that of German state under the Basic Law. The present analysis shows that the powers which the European Treaties accord to the EU, in particular the competences for law-making, mostly lack clear limitations. The predominant type of interpretation is the teleological, dynamical one, which one-sidedly focuses on the EU's ability to function. The powers allocated to the EU under the Treaties are far less determined by subject-matters than target-oriented. The doctrine of implied powers, the principle of effectiveness, and general clauses provide the law-making institutions of the European Union with additional room for manoeuvre. The limits on the EU's exercise of its powers (Art. 5 TEU) are almost ineffective. By an unrestrictive interpretation and application of the existing provisions on powers in the practice of the European Union, the fundamental principle of conferral is progressively changed into a competence of the institutions of the European Union to decide on their own competence (Kompetenz-Kompetenz). Accordingly the authorization to further develop the »Constitution« of the EU no longer exclusively rests with the Member States. The democratic right to self-determination of the European peoples, and thus the democratic legitimation of the EU, which lags behind that of the Member States, are increasingly eroded. The Federal Republic of Germany is obliged under constitutional law to press for a reversal of the present development.
Daniel Riedel: Eigentum, Enteignung und das Wohl der Allgemeinheit