Speaker

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Professor Thomas Giegerich, Faculty of Law, University of Kiel, Germany | Director of the Walther Schücking Institute for International Law | Visiting Professor, School of Law, University of Edinburgh (Edinburgh Profile »)

Date

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Friday 10th February 2012

Time

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1pm (with a sandwich lunch, sponsored by Cambridge University Press, from 12:30pm)

Venue

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Finley Library, Lauterpacht Centre for International Law, 5 Cranmer Road, Cambridge 

Professor Dr jur Thomas Giegerich is a professor of public law, public international law and European Union law at the Law Faculty of the University of Kiel, Germany, and Director of the Walther Schücking Institute for International Law (since 2006). He held his first chair in public law, EU law and public international law at the University of Bremen, Germany (2002 – 2006). Formerly, he was a senior research fellow at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg (1990 – 91, 1993 – 2002), and a law clerk at the German Federal Constitutional Court, Karlsruhe (1991 – 1993). His doctoral thesis deals with the state action doctrine of the US Supreme Court and his second doctoral thesis (Habilitationsschrift) with the relationship between the European constitution and the German constitution in the process of transnational constitutionalization. His other publications include numerous articles on various topics of European Union law, public international law and comparative constitutional law.

Thomas Giegerich is teaching at the School of Law of the University of Edinburgh as a Visiting Professor (September 2011 – March 2012). In 2007, he spent two months as a Visiting Fellow at the Lauterpacht Centre.

Lecture summary:
In view of its broad review powers and broad popular access, the German Federal Constitutional Court holds a unique position in the European integration process (EU and ECHR). The Court’s critical sympathy towards the EU and the ECHR translates into the retention of problematic review powers which can result in the inapplicability of European acts in Germany. In practice, however, those powers have never led to that result.

Assuming guardianship over the principles of conferral and subsidiarity, the Court claims the power of ultra vires review over EU acts, including judgments of the CJEU (and the ECtHR). That dysfunctional power is incompatible with both the Treaties and the German Basic Law. When called upon in 2010 to exercise ultra vires review in practice, the Court ultimately paid deference to the challenged judgment of the CJEU.

The Court also assumes guardianship over the Basic Law’s core values that make up Germany’s constitutional identity. It claims the power of identity review, that is the power to review EU acts, including judgments of the CJEU (and the ECtHR), as to whether they are compatible with Germany’s constitutional identity. With regard to binding provisions of EU law, or judgments of the CJEU or the ECtHR, the Court’s identity review cannot be justified under either the Treaties (including Art. 4 (2) TEU) or the Basic Law.

The maintenance of the rule of law in European integration can only be successful if it is understood as a common endeavour and joint responsibility of the European Courts in Luxembourg and Strasbourg and the national courts. These courts owe each other cooperation and critical respect. One should not threaten to use unlawful acts of resistance against imaginary perversions of justice which the others will anyhow never commit. The answer to the question posed in the title is therefore a firm ‘no’.

 Lecture Handout