How the European Community’s Banana Regulation Brought Back Solange If: The German Constitutional Court’s Decision of June 7, 2000

7 Colum. J. Eur. L. 405 (2001)

Julia C. Kupfer. J.D. Columbia University School of Law, 2001.

On June 7, 2000, the German Constitutional Court was faced with the most recent installment in the Solange-Maastricht line of cases.’ At issue was the question of whether the German Constitutional Court would accept a reference from a lower German court as to the constitutionality of the European Community’s organization of the market in bananas, which, it was claimed, violated certain fundamental rights otherwise guaranteed by the German Basic Law’s essential, inalienable protection of fundamental rights. A preliminary reference in the case had already been made to the European Court of Justice (ECJ), in response to which the ECJ stated that it had no reservations as to the legality of the EC regulation. Thus, the German Constitutional Court for the fourth time found itself faced with the potential for a clashing of Community law against the norms set out in the German constitution. This time, however, the German Constitutional Court refused to accept the reference from the Frankfurt Administrative Court (Verwaltungsgericht, hereinafter “AC”), and took the opportunity to clarify its legal position vis-à-vis the European Community in general and the European Court of Justice in particular.

In its Decision of June 7, 2000 (hereinafter “Bananas Decision”), the Constitutional Court reiterated the pro-European position it had taken in Solange I1: references from other German courts as to the validity of secondary Community law in Germany would be inadmissible so long as they failed to persuasively allege that European Community law, and in particular the case law of the European Court of Justice, failed to adequately guarantee the essential, inalienable protection of fundamental rights that is guaranteed by the Basic Law in Germany.2 This decision backs away from the brinkmanship displayed by the German Constitutional Court in its Maastricht decision. In the Decision of June 7, 2000, the Constitutional Court took the opportunity to reinterpret its Maastricht decision in a more Europe-friendly manner and to limit its own jurisdiction over Community law to instances where it could be specifically shown that the standard of protection of fundamental rights guaranteed to German citizens by the German Basic Law is generally not guaranteed by the ECJ. While the European Community does not guarantee a catalogue of fundamental rights that is identical to the one in the German Basic Law, the German Court with this decision demonstrated that it is willing to lie dormant and accept a “substantially similar” level of protection – “so long as” the European Court of Justice upholds its end of the bargain. Despite the fact that this formulation still implies that the Constitutional Court could exercise its jurisdictional power, new procedural hurdles imposed by the Bananas decision will make the probability of an admissible reference highly unlikely, making the chances that the German Constitutional Court will ever exercise this power even more slim.