The case of Germany: Low enough risk to insist on the last word
Germany is a moderately dualist country[126] with a comparatively very robust system of constitutional review.[127] Its constitution is not strictly speaking rigid, but much less malleable than the Swiss constitution.
Some of the most central aspects of the constitution are unalterable, even by the most qualified majority. Germany is a member of the EU and recognised - subject to specific conditions - the supremacy of EU law early on.The case law of the German Federal Constitutional Court concerning the relation of the Grundgesetz to treaty law is markedly different from the Swiss Federal Court’s willingness to grant treaties supremacy even over the constitution. The German apex court may insist that the ECHR and the decisions of the ECtHR bind all the organs of the German state, not just the state as a subject of international law, and that lower courts therefore have an obligation to incorporate the case law of the ECtHR. But although the obligation to incorporate stems from the principle of the rule of law enshrined in the Grundgesetz (Art. 20 III GG), the Convention stands in the rank of a federal statute only and in lower rank than the Grundgesetz. One could have argued that the constitutional obligation to respect treaties factually elevates the content of these treaties to the rank of the constitution, but the BVerfG explicitly rejected this interpretation.[128] The Court underlined this position in a recent decision that implied the possibility that the ECHR might be overridden by statutory law.[129] The openness of the German constitution towards international law does not go so far as to waive the possibility of the last word that remains for the legislative power.[130] Lower courts are, therefore, obliged to incorporate international treaty law, but only as long as this does not infringe on the constitutional order.[131]
Activism as defence 55
In a recent decision, the German Federal Constitutional Court took a stance regarding the possibility of treaty override that bears remarkable similarities with the Schubert-jurisprudence of the Swiss Federal Court.[132] This doctrine, however, is mitigated by an important exception (that the court only implies) and which the Swiss Federal Court only added to its Schubert jurisprudence in the 1999 ‘PKK’ case - the exception to override human rights treaties.[133]
How is this doctrine related to the degree of flexibility of the Grundgesetz? The German Grundgesetz is harder to revise than the Swiss Federal Constitution.
It requires not just a double majority like in Switzerland, but a qualified majority of two-thirds of both the Bundestag and the Bundesrat. Still, the Grundgesetz is revised rather often compared to other constitutions. Since its entry into force in 1949, it has been revised 60 times. This is too frequently, in the opinion of some, which is why an adaptation of its revision mechanism has been suggested.[134] Much more important is, therefore, what is - unlike in Switzerland - outside the scope of constitutional revision. Art. 79 III GG declares some provisions of the Grundge- setz as inalienable and protects notably Art. 1 and 20 GG (the protection of human dignity and the democratic, social and federal nature of the Republic) from revision. This markedly reduces the friction surface between international treaties and the constitution. The Federal Court invokes this fact to argue that the principles it developed in the context of fundamental and human rights issues cannot simply be transferred to problems regarding more mundane conflicts of international and domestic law, e.g. in the area of tax law.[135]The popular initiative in Switzerland that led to the most immediate problems with treaty law, the initiative ‘for the expulsion of criminal foreigners’, had - until 2015 - a remarkably similar counterpart in Germany, introduced by the Kohl Administration (§§ 53-56 of the then Aufenthaltsgesetz). Yet this counterpart was simple statutory law, not constitutional law as in Switzerland. The mitigation of its effects in order to protect individual rights could, therefore, be done with reference to both constitutional guarantees and the ECHR (in this case Art. 6 GG and Art. 8 ECHR).[136] A conflict between constitutional and treaty law, as in Switzerland, was avoidable in the case of Germany. The need to harmonise the rules regarding the expulsion of foreigners with both constitutional and treaty law was the impulse to reform this field of law.[137]
In the German context, too, the decisive question is not so much, whether international treaties are violated, but which ones and how effective the mechanisms of
enforcement of these treaties are.
The better the structure of a constitution can avoid the violation of treaties with a biting enforcement mechanism, the easier it is to insist on the primacy of domestic constitutional law over treaty law. In this situation, the German Federal Supreme Court may be rather energetic in defending its own power against the potential power grab of international and European courts. Unlike in Switzerland, however, there is no need for the Court to get into conflict with the legislative or the executive branch of government. Defending the supremacy of domestic law means defending the power of all three branches of government. No activism is needed in that respect. On the contrary, the Court achieves the goal of reducing conflict between international and national law through a very legalistic jurisprudence.4