Monday, 1 May 2006

The principle of mutual recognition to the test right?

On 18 July 2005, tipped the German Federal Constitutional Court in Karlsruhe, the German law implementing the EAW. As in other EU countries simply unnoticed, or was seen in the European institutions as an intra-German problem [1], which would eliminate the German legislature in the near future, is in reality an attack of Germany's highest court on the European law more and more pervasive principle of mutual recognition of legal systems of other Member States. This principle was developed by the European Commission from the Cassis de Dijon decision of the ECJ in 1979 over allowable import restrictions on goods.

From the pure world of commodities, he was then very quickly also apply in other areas of EU law. He has, for example, the basic philosophy of the Dublin Convention concerning the powers of Member States on asylum procedures. For asylum applications may be rejected without substantive examination and asylum seekers to be deported to another, according to the Dublin Convention relevant EU country because his asylum proceedings is deemed to be equivalent. The principle of mutual recognition is the gateway for the lowest legal standard among Member States in the legal systems and living conditions of residents of other Member States whether this now affects the corporate tax law, environmental regulations, product safety or social standards. The European arrest warrant has this philosophy of equality of all Member States' legal systems now found its way into well thorniest area of governmental authority, namely the criminal law. If the principle already in the asylum law is highly questionable (for example, displaced persons were the Yugoslavian civil war in Germany, the refugee status denied the Geneva Convention, while they have been recognized in Britain), so is he, in fortunately now also considered by the Federal Constitutional Court, Criminal simply unacceptable. The argument of the Federal Constitutional Court is relatively simple. It says that in democratic states the rules for men are only binding if they are adopted by institutions of their choice, they are involved.

This is a logical continuation of the American Revolution through the well-known slogan "no taxation without representation", that is also now "not legally binding without democratic legitimacy". In contrast, implies the mutual recognition of legal systems of other Member States to apply rules that were being enacted not by such institutions, but of foreign parliaments, not at his option, to local citizens were involved, rules of ordinary citizens and not is obliged to know and in a constitutional state has to not observe.

The principle of mutual recognition is thus an attack on democracy and rule of law. If a Briton denies in an Internet forum, the extermination of Jews by the Nazis, then he is indeed an idiot and probably represents an anti-Semite, but his statement under UK law, no illegal and Under German law, however, it is a misdemeanor, and the so-called crime of cyber crime , connected with the case of a defendant with a foreign domicile always present danger of flight, the German judiciary is the opportunity to apply for a European arrest warrant, which must be run from the UK. Absurd? Of course, but European reality.

At this absurdity is not altered by the decision of the German Constitutional Court. Because this Court had only jurisdiction to the extent that fundamental rights and the right to justice for German were affected. Accordingly, it has only those parts of the German overseers collected Implementation Act, but not require, the provisions that allow the German judicial authorities, the extradition of suspects from other Member States. It is the task of constitutional courts in all Member States for their citizens comparable protection of fundamental rights to enforce and to demand the observance of democratic principles, and thus to overturn the national implementing laws.

The decision of the Federal Constitutional Court might due to its underlying rejection of the principle of mutual recognition have an impact that go far beyond the decided case: If the mutual recognition in criminal law is a violation of the principle of democracy, there is no reason why it should be different in fundamental areas of law. Rule of law means that key interventions are possible in the rights of the people on the basis of laws passed by Parliament. This threshold of "significant interference" may also in commercial law, in which the principle is the most widespread, be achieved in many cases. Commercial law includes rules on freedom of occupation, on the free development of personality, probably on the property, at least in its preliminary stage of the acquisition. It is difficult to see why rules should apply here, the parliaments have enacted, not on their election, the parties were involved. A very specific case is conceivable if a European product was introduced into Germany, its use will cause damage, a claim for compensation but fails, because the product, even if not under German, then at least according to foreign law in compliance with all legal requirements, so produced without any breach of duty, the German claim such a standard breach of duty but requires. Here, a national victim, a claim based on rules for the general democratic principles should not apply to him would veweigert. A good illustration is also violation of democracy in those cases in which force the rules of free movement of goods to a Member State to introduce genetically modified agricultural products, although the national parliament prohibits the cultivation and sale.

Here is the correct application of the democratic will of the people by a Brussels decision will be canceled without sufficient legitimacy. The Federal Constitutional Court has a long history of conflict with the ECJ and the European law. First, the Federal Constitutional Court declared in the application of European law solely responsible for the maintenance of committed in the German constitutional rights. A few years later she admitted to the legal development in the EC, that protection is a fundamental right guaranteed by European law and accepted the competence of the ECJ in vital basic rights litigation. With the Maastricht verdict before it took a new turn and warned before the ECJ, transmitted by extensive interpretation of the contract further powers to the institutions want. It announced that such contract extensions to the democratic institutions in Germany get past any legal liability. Should this warning in light of the recent decision on the incompatibility of the principle of mutual recognition with the legal principle of democracy, not its general application in question? It will be interesting to determine how the Federal Constitutional Court, if it should receive in the future the chance to rule on a complaint of a trader who feels violated by the principle of mutual recognition and thus the validity of a foreign legal system, their rights .

This could be the Federal Constitutional Court to take revenge, because the stringent requirements of the Maastricht decision on the further development in Europe - which would only be possible if any further transfer of powers would be offset to Brussels by the democratization of the institutions - at least from the Amsterdam Treaty, the immigration policy communitarized, was grossly violated. Of course, the institutional Europe would howl that account for such a decision. But what of a departure from the principle of mutual recognition because so harmful? On the contrary, it would be the race of the Member States to the lowest standards that are set in the social law in the corporate tax or environmental law, an end. Do not want more of the Member State with the lowest standard would determine the level, but anyone who sell goods in another Member State, provide services or develop other activities, the rules of that Member State would have to accept. This would only again paid homage to the golden rule for all travelers (among which I include here the goods): When in Rome, do as the Romans do! As a tourist, but even just the proles come up with the idea to say: "What is right for me, must be correct for my hosts." Europe has made ​​this his motto motto proles and wants to be admired as an efficient and even liberal. Europe should have more respect for national and regional particularities, as the German tourist in the Bravo. Harald Greib St Jean de Fos (France) Harald Greib is a board member of Newropeans, the first trans-European political movement with the goal of democratic founding of the European Union. In the Central German publisher, he published his novel in January 2006 on the European policy is "Berlin with a request for transfer", the insights into the workings of European institutions. [1] At least the report of the EP (2005/2175-INI) is suitable for a clear "as usual" and merely expresses the wish is expressed, the difficulties that had arisen in some countries due to high case may be settled as soon as possible. This article was the rapporteur for opinion, Adeline Hazan, which has however made ​​no use.

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