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Der europäische Verfassungsgerichtsverbund
The German Federal Constitutional Court, the European Court of Human Rights (ECHR) and the Court of Justice of the European Communities (ECJ) are vested with different, albeit functionally comparable, tasks in the European multilevel system. They do not operate opposing each other but in a framework of multilevel cooperation of the constitutional courts, the Europäische Verfassungsgerichtsverbund. This term is used here to describe the numerous techniques of cooperation between the three courts, avoiding rigorous conceptions such as “equal footing” or “supremacy” to denote the relationship between the courts. The legal foundations for such cooperation can be found in two German constitutional law principles: openness to international law (Grundsatz der Völkerrechtsfreundlichkeit) and openness to European law (Grundsatz der Europarechtsfreundlichkeit), the latter principle developed distinctly in the Lisbon judgement of the Federal Constitutional Court. The cooperative foundations can also be noticed from the impact of national legal principles on European law, in particular concerning the protection of individual rights. For example, the individual complaint to the ECHR serves as a supplementary layer of the protection of human rights in addition to the national constitutional complaint to the Federal Constitutional Court. Furthermore, the Treaty of Lisbon explicitly recognises that the national identity of the Member States is to be protected—this already is a constitutional principle of the European Union. With this as background, it may well be argued that the constitutional yardstick of “identity control”—which the Federal Constitutional Court introduced in its Lisbon Treaty judgement to identify the ultimate limits of European integration—is also an integral element of the multilevel cooperation system that obtains between the Federal Constitutional Court and the ECJ.
No. 106/2009
Andreas Voßkuhle

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