Über Hoheitsrechte und deren »Übertragbarkeit«

According to Article 23 paragraph 1 sentence 2, Article 24 paragraph 1 and Article 24 paragraph 1a of the German Constitution (Grundgesetz), the Federation may »transfer sovereign powers« to third entities such as the European Union or international organisations. The notion »foreign powers«, in this context, encompasses all competences of state authorities, be they of legislative, executive or judicial nature. If such sovereign powers, as the constitutional terminology implies, can be »transferred« to third (i.e. nonGerman) entities, one might think that the Grundgesetz itself authorises the Federal Republic of Germany to use them as trade goods in international relations and, ultimately, to give up its own sovereignty as a whole. However, German jurisprudence and the judicature of the Federal Constitutional Court (FCC) both agree that such understanding of »transfer« is not applicable under the rule of the Grundgesetz because sovereign powers are inalienable. Thus, instead of being trans ferrable, certain (though not all) sovereign powers are con ferrable to third entities. On this premise, this essay outlined the limits of a »transferability« (or rather – if a term like this existed: »conferability«) of German sovereign powers. These limits can be determined by a three-step test reflecting the so called ultra vires and identity review case-law of the FCC: (i) Sovereign powers cannot be conferred in their entirety or excessively; any legal act contravening this premise would be void (which, by the way, the act of parliament approving the Lisbon Treaty is not). (ii) Within the framework of legally conferred sovereign powers, the German legal system concedes that any legal act enacted by the entity to which the sovereign powers are conferred (typically the EU) has direct effect in Germany and overrules contravening domestic law. (iii) Such direct and overruling effect is granted only as long as a the respective legal act does not fall outside the conferred framework of sovereign powers, which has been previously determined by the domestic law (typically the act of parliament approving the Lisbon Treaty); the final ruling whether an act falls outside the conferred framework of sovereign powers is reserved to the FCC. Sovereign powers may be conferred legally only under certain formal and material conditions. This means inter alia: the act of parliament by which sovereign powers are conferred must be sufficiently clear and precise, and particularly define the exact framework of conferring; sovereign powers touching upon the constitutional core of the Grundgesetz (i.e. Article 79 paragraph 3) are not conferrable; the Grundgesetz standard of fundamental rights must be upheld. What is more, the fact that sovereign powers may only be con ferred instead of trans ferred implies that there always must be a way to retract these powers from the entity to which they have been conferred. Such retraction has to follow the actus contrarius principle, i.e. a retraction act analogous to the conferring act must be passed by the Bundestag. This status quo raises further questions on conferring sovereign powers. One of them addresses the relationship between domestic and international law. The conditions of conferring sovereign powers under the Grundgesetz and under EU law and/or international law are not necessarily consistent. Particularly when it comes to EU law, conflicts of competences are not unlikely. From the German law perspective, the act of parliament approving the Lisbon Treaty and the Grundgesetz determine the scope of conferred competences. From the EU law perspective, the Treaties are pertinent. However, from the mere wording of both sources of law, divergences are unlikely to occur. It is rather a matter of interpreting the respective law. Particularly the recent case-law of the ECJ on the one hand and the FCC on the other hand reflects a dispute on the interpretative prerogative on EU and domestic competences. Irres