Separation of Powers and the Role of National Constitutional Courts in the EU: German Lessons for Europe?

This chapter aims to critically assess whether and in what ways the review of European law by national constitutional courts can provide an appropriate answer to the EU’s separation of powers problems. While some have argued that such review does indeed offer a suitable response to some of the EU’s separation of powers problems, this chapter argues that constitutional courts instead risk exceeding the limits of their proper role. The chapter focusses on the German Federal Constitutional Court’s (GFCC) elaborate case law on the EU, which has placed this court at the centre of debates on the role of national constitutional courts in the EU. Based on this study of the GFCC, the chapter argues that the review of European law by national constitutional courts carries the risk that these courts will end up deciding contested political issues on the EU that are better left to legislative institutions. To avoid this dilemma, the chapter reasons that constitutional courts should play a limited role in relation to the EU and concentrate on protecting the room for legislatures to decide on fundamental constitutional questions regarding the EU. The German case suggests that constitutional courts can fulfil such a role by countering executive dominance through demands for adequate participation and information rights on EU affairs for their national parliaments.