Sovereignty Lost, Sovereignty Regained? Some Reflections on the Bundesverfassungsgericht’s Bananas Judgment

9 Colum. J. Eur. L. 109 (2002)

Miriam Aziz. LLB, Ph.D., Barrister-at-Law. Currently a Marie Curie Fellow at the Robert Schuman Centre for Advanced Studies, the European University Institute, Florence.

Sections of this paper have been included in a Robert Schuman Working Paper (2001), Florence Working Paper, RSC No. 2001/31. I am grateful to participants of the European Forum of the Robert Schuman Centre, Betveen Europe and the Nation State: the reshaping of interests, identities and political representation (2000-2001) for their constructive feedback after I gave a paper based on this article as part of the seminar series on The Europeanization of national and legal cultures. Particular thanks are also due to Matthias Mahlmann, Bruno de Witte, Neil Walker, Richard Bellamy, Hanno Kube, Christoph Schmid and Sue Millns for their comments on earlier versions of this article. The usual disclaimer applies.

Law is a normative order that is customarily understood in terms of a hierarchy. In the German legal system, for example, the hierarchy consists of the Basic Law, Federal Law and State Law. European Community (EC) law may also be understood according to a hierarchical model to the extent that, as the catechism provides, it prevails over national law and consists of primary and secondary sources of law arranged according to a hierarchy of precedence or Anwendungsvorrang. The implications for state sovereignty are considerable, particularly given the growing number of substantive EC law subject matters, which traditionally resided within the exclusive competence of the member states, but which now have been pooled through Europeanization. Immigration law and policy, is a case in point; the single currency is another. In effect, member states no  longer have absolute sovereignty over these issues in the sense envisaged by the Treaty of Westphalia. The constitutional courts of the respective member states, however, are still in the process of coming to terms with this decline in sovereignty. Indeed, the constitutional courts as influential actors in the integration process have, in their own way, contributed to the politicization of the sovereignty debate and have helped to perpetuate the view of the age of absolute sovereignty as ‘paradise lost’.

The issue of loss informs much of the debate concerning the project of European integration and sovereignty, which at the micro-level represents an illustration of the effects of the macro-level of globalization. With regard to sovereignty and the EU, loss has also been instrumentalized by some who seek to initiate what in law is sometimes referred to as a ‘claw back’ process or, to draw from Milton yet again, to regain that which has been ‘lost’. In the light of European integration and the increasing interdependence between states,” others take a more pragmatic view of the sovereignty of the nation-state as being ‘pooled’ at the supra-national level.

Law has played a part in both scenarios; it has been instrumentalized to reflect both views of the role of the nation-state in European Integration. Indeed, the concept of the nation-state is a vital premise of the legal reasoning that forms the basis of the incorporation of EC law into the jurisdictions of the member states. The underlying tension is as follows: either a state’s membership in the EU entails categorical acceptance of the supremacy doctrine, which is in itself, an endorsement of the hierarchical model of law; or the state retains the right to set the supremacy doctrine aside in certain situations. Thus, even if a member state accepts that its sovereignty is qualified by its membership in the EU, it is by no means an unconditional qualification. These two positions represent two versions of the relationship between EC law and national law and, in the context of Germany, two competing schools of thought in the juridical debate concerning European integration. The term ‘German juridical debate’ is used to denote the legal academic community, which, in contrast to the academic communities of other member states of the EU, acts as a source of influence on the jurisprudence of the Bundesverfassungsgericht or German Federal Constitutional Court (“FCC”), which in turn has considerable influence on the European integration process. On the one hand, the role of the court should not be overstated, particularly given the institutional constraints placed on judges. On the other, it is the role of the national constitutional courts of the member states of the EU to articulate the relationship between EC law and national law in an ongoing debate, characterized by shifting normative relationships that are predicated on the issue of the fundamental legitimacy of political power.