The interactions between the German Federal Republic and the European Union constitutional models: liberalism, rule of law, cosmopolitanism

Postwar German constitutionalism, a model designed to establish a thriving free market economy with particular concern for the defence of property rights, delighted the liberals, who by the time in which the Basic Law was drafted exer­cised a powerful influence on political and economic thought.

Erhard who was, besides his affiliation to the mentioned neoliberal strand, Minister of Economic Affairs in the Adenauer governments and later Chancellor of the Federal Republic.²⁷

The Western German model alluded to most of the characteristics that the liberals had outlined in designing political institutions, beginning with a deep distrust towards nationalism and democracy as threats to the functioning of the market order. Hayek, for instance, understood that the democratic expression of nationalism would lead inexorably to socialism. Through democracy, national­ism and socialism were “inseparable forces” (Hayek, 1976, p. 134). Liberalism was essentially cosmopolitan and conceived a world of political entities focused only on enforcing the law to guarantee economic freedoms such as the freedom of trade, the free movement of capitals, the freedom to invest,²⁸ and the free­dom to consume. Hence it is not surprising that some of the authors mentioned were sympathetic towards a political system grounded on federalism and on the minimization of national impulses, a trend that would be later reproduced in the formation of the European Communities (Weiler, 1999, pp.

In fact, Western Germany would become a laboratory of the liberal conceptions that would be later displayed through the European institutions: the centrality of the rule of law expressed in constitutional supremacy (the supremacy of the European Constituent Treaties at the European level), the preference of adjudication by judges and scholars above the decisions adopted by the representatives of the people (and from this claim may be explained both the decisive role assigned to the German Federal Constitutional Court within the German constitutional structure, and the importance that the European Court of Justice would gain as European integration went forward), and the ability of the interpreters of the law to ensure fundamental rights (emphasizing economic freedoms) to override anything decided through popular involvement. Needless to say, in the liberal set of coordinates it is irrelevant whether the people had participated, or not, in the foundational decisions of the system. According to the liberal criteria, it was better that the populace be excluded from the institutional design since their demands for redistribution were seen as the root of all economic problems.

The tenets of liberal constitutionalism were also maintained with the constitutional changes that reunification brought about: its internationalism was, for instance, revealed by the circumstance that the constitutional amendments were linked to international treaties such as the Four plus Two Treaty, the Unification Treaty, or even the treaty between the German Federal Republic and Poland on the Eastern German border (Kumm, 2016a, p. 923). As we have seen, in addition, the reunification of Germany was accepted by the Allies as long as the new Germany was committed to European integration, as would be explicitly inserted in the new wording of Article 23 of the Basic Law, also known as the “European Article.” Legalism, the contention of the citizenry in the constitution­making process, or the fact that the united Germany represented the abduction of a former socialist economy into a free market economy (which, at the very same time, was deeply integrated in a larger liberal structure which was the European Common Market) reaffirm the persistence of the neoliberal pattern in defining the German constitutional culture.

On the other hand, this strand of cosmopolitanism in defining a constitutional framework in a global arena, detached from a demos and essentially built on the idea of the rule of law is still reflected in the work of present German scholars. As we have seen in the second chapter of this book, the struggle to surmount the association between the constituent power and a national sovereign through supranational structures has been mainly developed by German authors such as Nico Krisch, Mattias Kumm, and Bardo Fassbender. German liberal constitutionalism played a significant role in defining German policies as well, both in the years that preceded the European Sovereign debt crises, and in the years that followed these crises. The beginning of the twenty-first century was a time of relative economic stagnation for Germany, against which a Social Democratic Chancellor, Gerhard Schroder, applied a neoliberal recipe, that allowed his successor, Angela Merkel, to tackle the world's Great Depression from 2008 in better conditions than most Western economies (Tooze, 2018, pp. 94-95).

Germany, given its economic success derived from the liberal reforms adopted by the beginning of the century and the accumulation of fiscal surpluses, would later lead the crises of the Euro and would determine the economic policies of some Southern European States that were strongly indebted to German lenders. Some of them, such as Greece or Spain, were forced to ask for bailouts from the different European and global funds that were at that time constituted to rescue fragile economies, with an important level of German design of these funds.