Further in Factortame21, the court had to decide upon three important and at the same time complicated factors: 1) whether the court could protect alleged rather than established rights under Community law; 2) whether, contrary to a previous precedent, the provision of the Community law could confer jurisdiction on the English court to grant injunctive relief against the Crown; 3) the conditions, under which such relief could be granted, provided such jurisdiction existed. The preliminary ruling of the ECJ on the first point stated that:
"The full effectiveness of Community law would be impaired if a rule of national law could prevent a court seized of a dispute governed by effectiveness of the judicial decision to be given on the existence of rights claimed under Community law. " The ECJ reaffirmed its decision in the Simmenthal Spa22 case, repeating that directly applicable rules were to be fully and uniformly applied in all Member States in accordance with the principle of precedence of Community law over national law.
Article 5 of the EC Treaty23 safeguards the principle of direct effect by imposing an obligation to ensure the legal protection it provides. The Community Council of Ministers is the body having the decision-making powers. Its members are appointed by the governments of Member States. Thus, in Germany, it is the Federal government participating in the Council of Ministers, not the Linder. As a result of this transfer of power from national level to Community the position of Li?? nder within the national system had been threatened.
This is especially so considering the expanded Community competence under the Maastricht Treaty. For instance as a result of the EC Broadcasting Directive24 imposing quota on European products and regulating advertising, the competence of the Li?? nder was seriously undermined. The case was decided against the government as it failed to adequately work with and consult the Li?? nder. Even though the matter was of Community nature, failing to fulfil its duty, the government infringed on the legislative competence of the Li??
nder. The Maastricht Judgement25 questioned whether or not the accession to the Maastricht Treaty would threaten the German democracy and sovereignty by way of infringing Articles 38 and 20. It was submitted that only Article 38, on the right to take part in government elections could be infringed, but only if the transfer of powers to the EC resulted in non-observing of the minimum requirements under Article 20(1) and (2), namely the right to participate in the exercise of state powers.
In reaching its judgment, the BVerfG considered the whole content of the Maastricht Treaty and concluded that: 1) The treaty coming into force would provide better protection of German fundamental rights; 2) That in this way, a shield would be provided against the acts of the EC institutions, as they will be reviewed according to the Grundgesetz protections. It was submitted that the ECJ would cooperate in this process. 3) BVerfG would restrict itself to a general guarantee of basic rights standards, the reason being – the guaranteed basic rights for the whole of the Community by the ECJ.
The constitutional principles under Article 38 Grundgesetz on democracy and the right to vote for government was submitted to be threatened only if the freedom it provides for is reduced to such an extent as to become meaningless and therefore in breach of Article 39(3) and 20(1). Furthermore, the Court held that Article 38 does not allow a general transfer of powers. Unless the German Accession Act is specific as to the scope of the transferred powers, Article 38 would be breached.
It follows that EU institutions had to ensure that the Treaties were applied and developed to be compatible with the Accession Act manner in order for Community law to be binding within the German state. Thus, in order for this process to be successfully carried out, the Community legal order was subjected to the BVerfG's review first! These conclusions established that both the Accession Act and the Maastricht Treaty were constitutional. It seems that the BVerfG exercises a supervisory role over proposals for integration.
However, it is argued that this compromises the democratic ideals of the EU. Nevertheless, Article 23 makes further European integration impossible. Concerns about the participation of the Li?? nder may be resolved providing Bundesrat and Bundestag representatives become more involved participating at a European level and increase their efficiency in reviewing Community proposals. EU decision-making may be held up due to Article 23 Grundgesetz, imposing a cumbersome legislative procedure in Germany.
Furthermore, it has been argued that lower courts may attempt to make the BVerfG aware of possible Community law infringements on the Grundgesetz. However, the judgment of the case in question suggests that the BVerfG is prepared to undertake the functions it has reserved for itself. If this happens, a conflict between Community law and Grundgesetz, or between ECJ and the BVerfG is very possible. The main reason being, BVerfG reserving the reviewing right over the following areas:
Reviewing legal instruments of the EC for their compatibility with the transferred powers; – adjudicating on complaints that either the ECJ or the Community have overextended their jurisdiction in developing Community law; – reviewing Community law in the light of fundamental rights and provisions of the Grundgesetz. Although English courts are comparatively more susceptible to adopting Community law compared to German Constitutional Court, there are conflicts occurring between English and Community law too!
An example that springs to mind is the case of Macarthys v Smith26. The case was one of sexual discrimination. The main issue for consideration being whether men and women, employed at different times for the same job, were required by the Equal Pay Act 1970 to be paid equally. Article 141 of the Treaty27 provides for equal pay for men and women. However, it is understood in far broader terms than those used in the Equal Pay Act 1970. The matter was subsequently referred by the Court of Appeal to ECJ under Article 17728.
The ECJ held that article 119 required equal pay for men and women, whether they were employed contemporaneously or in succession. Another example of conflicts occurring between English and Community law is the case of Garland v British Railway Engineering Ltd29 . The issue here was whether a policy allowing concessionary travel facilities to children of male employees reaching retirement amounted to discrimination contrary to Article 119, as it did not allow the same benefits to children of female employees reaching retirement.
The ECJ had to decide whether the courts in England should construe the Sexual Discrimination Act 1975 in a manner compatible with the requirements of Article 119. The ECJ ruled that the policy amounted to discrimination contrary to Article 119 and that Article 119 must prevail. Reception of EC law is difficult because the EC has ignored the internal political and legal make up of Members States, thus complications with implementation of EC legislation occur regardless of whether Member States are Federal States or Constitutional Monarchy.