A Difficult Partnership between Courts: The First Preliminary Reference by the German Federal Constitutional Court to the CJEU
| Author | Ingolf Pernice |
| Published date | 01 March 2014 |
| Date | 01 March 2014 |
| DOI | http://doi.org/10.1177/1023263X1402100101 |
| Subject Matter | Guest Editorial |
21 MJ 1 (2014) 3
GUEST EDITORIAL
A DIFFICULT PARTNERSHIP BETWEEN
COURTS: THE FIRST PRELIMINARY
REFERENCE BY THE GERMAN FEDERAL
CONSTITUTIONAL COURT TO THE CJEU
I P*
§1. INTRODUCTION
Constitutional Courts in di erent EU Member States have had no particular problem in
referring questions of val idity or interpretation of Union law to the Court of Justice of t he
European Union (CJEU). e German Federal Constitutional Court (GFCC), however,
has resisted this for a long time – s eeking, whenever an opportunit y might arise, a way to
avoid using the Article2 67 TFEU tool of cooperation for national courts and the CJEU.
An example is the famous case regarding the German measures transposing the EU
Data Retention Directive 2006/24/EC. e GFCC found that there was no valid reason
to question the validity of the Directive, but that the national provisions transposing
it went too far and violated fundamental rights of the German Basic Law (the German
Constitution), in particular, Article10 on the privacy of telecommunications. Instead
of preserving the national provisions in the measure applicable as far as required by the
Directive, however, it struck down the entire law.1 e result was that Germany beca me
subject to an infr ingement procedure initiated by the European Comm ission requesting
the CJEU not only to state that there had been an infringement, but also to impose the
lump sum of €315,036.54.2
* Professor Dr. jur., Dr. h.c. Cha ir for public, internationa l and European law, Humboldt-Universität zu
Berlin, Direc tor of the Walter Halls tein Institute for Eu ropean Const itutional Law (W HI) at Humboldt-
Universität zu Berlin (ww w.whi.eu).
1 BVerfG, 1 BvR 256/08 of 2.3.2 010, www.bverfg.de/entscheidungen/rs2 0100302_1bvr025608.ht ml.
2 European Com mission Press release: Dat a retention: Commission ta kes Germany to Cour t requesting
that nes be imposed, http://europa.eu /rapid/press-release_I P-12–530_en.htm.
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