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THE NATURE AND EFFECT OF EU LAW - The relationship between EU law and national law: supremacy - The view from Germany on supremacy

5 important questions on THE NATURE AND EFFECT OF EU LAW - The relationship between EU law and national law: supremacy - The view from Germany on supremacy

Does the Germany accept supremacy of EU law?

German courts have articulated different limits to supremacy of EU law. They have, subject to such limits, accepted supremacy of EU law.

What is the conceptual basis for Acceptance of Supremacy?

Supremacy is based on art. 23.1 of the Germany constitution. It's concerned with EU and allows for transfer of sovereign powers. Federal Constitutional Court adverts to ECJ's argument in Costa/ENEL: primacy of application of EU law is demanded because the Union couldn't exist as legal community if effectiveness of Union law wasn't safeguarded in MS.

What are the limits of acceptance of supremacy in fundamental rights?

German Court have laid down limits to acceptance of EU supremacy. There are 3 types of limits. They relate to fundamental rights, competence and constitutional identity.
Bundesverfassungsgericht doesn't recognize unconditional supremacy of EU law because possible impact of EU law on basic rights enshrined in German constitution. The Court made a statement that so long as the EU hasn't removed possible 'conflicting norms', it would ensure that national constitutional rights would take precedence (Solange I).

What are the limits to acceptance of supremacy in competence and Ultra Vires Lock?

Bundesverfassungsgericht expressed competence-based limit to acceptance of EU supremacy in Maastricht judgment, when constitutionality of state's ratification of Maastricht Treaty was challenged. German court gave themself competence to decide whether EU action is within scope of EU competence. Case law shows that this power would only be exercised where EU institution clearly acted in excess of competence and only after CJEU has been given opportunity to rule on contested EU provision.

What are the limits to acceptance of supremacy in The identity Lock?

Bundesverfassungsgericht gave another limit ruling on compatibility in Lisbon Treaty with German Constitution. German Courts fashioned limit to acceptance of EU law.