Friday, January 28, 2022

Alec Stone Sweet & Giacinto della Cananea in Conversation with Dieter Grimm, Justice of the German Federal Constitutional Court (1987 to 1999) (German LJ)

"A Conversation with Dieter Grimm (born in 1937, Justice of the German Federal Constitutional Court (1987 to 1999))"
Alec Stone Sweet and Giacinto della Cananea
German Law Journal (2021), 22, pp. 1541–1554
'A. Training and Academia
D. Grimm: There were no academics in my family; I was the first to attend university. At age 18, I was determined to go into politics, and I thought law was the best preparation for a political career...

E. Challenges, Past and Future
Questions: The development of the European courts, too, pose challenges to constitutional law.
There is now a widespread sensitivity to what is sometimes called “national constitutional identity.” The notion is today a legal construct, that gives a structure to inter-court dialogue, both cooperative or conflictual. The BVerfG, of course, has been at the forefront of these developments, from the Solange cases,15 to Görgülü,16 to the recent decision on the European Central Bank. Earlier, you stated that the ultimate issue is whether and when the BVerfG actually uses its powers to declare an EU act ultra vires. The issue has now been engaged, in the BVerfG’s ruling on the ECB, of May 2020.
Dieter: I expected it to happen at some point. Whether the PSPP case17 on the Bank was the best occasion is a different question. The Danish Supreme Court and Czech Constitutional Court did it earlier, but only the German Court’s refusal to follow the CJEU drew wide attention. It is a mistake to judge the ultra vires jurisprudence only from the viewpoint of the efficacy and unity of EU law. By definition, every European ultra vires act withdraws a subject matter from the domestic political process without authorization, thus limiting the range of the national constitution. The CJEU does not understand itself as protector of national democracy. It is also obvious that the Commission and the Council, too, can be the source of ultra vires acts, not just the CJEU. But the CJEU is extremely reluctant to declare European legal acts as ultra vires. consequently, the only safeguards of national democracy are the constitutional or highest courts of the member states.
Question: Looking forward, in the EU, national constitutional courts are now using the preliminary reference procedure more often. And in the ECHR, Protocol no. 16 now permits advisory opinions. Might these procedures help to structure more constructive dialogue among courts.
D. Grimm: That is indeed my hope.'  Click here to read the full conversation.

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