HEADNOTE:

Regulations of the Council and Commission of the European Communities (Article 189 (2) EEC) cannot be directly challenged by constitutional complaint.

Order of the First Senate of 18 October 1967- 1 BvR 248/63 and 216/67 -
in the proceedings on the constitutional complaints by the firm A. et al. against 1. Article 1 of Regulation 135 of the Commission of the European Economic Community of 7 November 1962 (EEC Official Journal p.2621) - 2. Article 1 taken together with Articles 2, 3 and 12 (3) of Regulation 159/66 of the Council of the European Economic Community of 25 October 1966 (EEC Official Journal p.3286).

DECISION:

The constitutional complaints are dismissed.

EXTRACT FROM GROUNDS:

I.

The complainants, German commercial firms, are aiming constitutional complaints directly against regulations of the Council and Commission of the European Economic Community (EEC), specifically against

1. Article 1 of Regulation 135 of the Commission of the European Economic Community of 7 November 1962 (EEC Official Journal p.2621) -

2. Article 1 taken together with Articles 2, 3 and 12 (3) of Regulation 159/66 of the Council of the European Economic Community of 25 October 1966 (EEC Official Journal p.3286).

They feel that they have currently and directly had their fundamental rights arising out of Article 2 (1), Article 3(1), Article 12 (1) and Article 14 Basic Law infringed; they additionally complain of contravention of other, in part unwritten, constitutional principles and of certain norms of European law.

On the admissibility of the constitutional complaints, they state that legislative measures of EEC organs ought to be regarded as acts of German public power, since these organs derive their legislative competence from Article 24 (1). There is no other legal recourse against such regulations than to the Federal Constitutional Court; specifically, they could not be directly challenged by the complainants through an action before the Court of Justice of the European Communities.

The Federal Government regards the constitutional complaints as inadmissible.

II.

The constitutional complaints are inadmissible.

1. The Federal Constitutional Court can by way of constitutional complaint review only acts of the "public power" (para.90 BVerfGG). According to consistent case law, these are only acts of the national, German public power, bound by the Basic Law (BVerfGE 1, 10; 6, 15 [18]; 18, 385 [387 f.]; 22, 91).

2. Regulations of the Council and Commission of the EEC are not acts of German public power.

a) The EEC was set up by the "Treaty establishing the European Economic Community" of 25 March 1957 (EEC Treaty). The legislative bodies of the Federation assented to the Treaty through the Act of 27 July 1957 - BGBl. II p.753.

The organs of the EEC are - as well as the Assembly and Court of Justice - the Council and the Commission. The Council, made up of representatives of Member State governments, makes the basic economic policy decisions; it is also the real law-making organ of the Community. The Commission is made up of independent members appointed by the Member States. It has principally administrative competences; however, in the context of its function of "guaranteeing the orderly functioning and development of the Common Market" (Article 155 EEC) it also possesses important law-making powers.

b) The Council and Commission can pursuant in more detail to the Treaty inter alia enact regulations. These are generally valid; they are binding in all parts and apply directly in every Member State (Article 189 (1) and (2) EEC).

c) The regulations of the Council and Commission are Acts of a special "supra-national" public power created by the Treaty and clearly differentiated from the State power of the Member States. The organs of the EEC exercise sovereign rights that the Member States have relinquished to them in favour of the Community they have founded. The Community is not itself a State, even a federal State. It is a Community of a special nature, engaged in a process of continuing integration, an "inter-governmental institution" within the meaning of Article 24 (1) Basic Law, to which the Federal Republic of Germany - like the other Member States - has "transferred" particular sovereign rights. This does not mean that a new public power has been created, autonomous via the State power of the individual Member States and independent; its acts therefore neither need be confirmed ("ratified") by the Member States, nor can they be abrogated by them. The EEC Treaty is in a sense the constitution of this Community. The legal provisions enacted by the Community organs within their Treaty powers, the "secondary Community law", constitute a separate legal order, the norms of which are neither international law nor national law of the Member States. Community law and the domestic law of Member States are "two autonomous legal orders, different from each other"; the law created by the EEC Treaty derives from an "autonomous source of law" (collection of decisions of the Court of Justice of the European Communities vol. VIII p.97 [110]; vol. X p.1251 [1270]).

Within this legal order there is a separate system of legal redress. The Court of Justice of the European Communities "guarantees the upholding of law in the interpretation and application" of the EEC Treaty (Article 164). In particular, it monitors the legality of the actions of the Council and Commission (Article 173). It may be invoked by the Council, by the Commission and by the individual Member States; but also any natural or legal person within the Community directly and individually affected by a decision of the Community organs may bring an action before the Court of Justice (Article 173 (2)). An "action for inaction" is also admissible (Article 175).

d) It follows from the legal nature of the Community that the sovereign acts enacted by its organs within the framework of their competence, among them regulations pursuant to Article 189 (2) of the Treaty, are not acts of the German public power within the meaning of para.90 BVerfGG. A constitutional complaint directed directly against such acts is therefore not admissible.

3. The complainants take the view that law-making measures proceeding from a supra-national organ ought also to be regarded as acts of German public power where that organ bases its legislative competence for the area of the Federal Republic of Germany on Article 24 (1) Basic Law. This cannot be followed. For the competence of the Federal Constitutional Court pursuant to para.90 BVerfGG, it is only the formal classification of the organ that has enacted the impugned act that is decisive; an organ standing outside the structure of the German State organization does not exercise any German public power. It is unimportant here that public power of the EEC can arise only through the collaboration of German State power. Were every kind of supra-national or international public power constituted by way of Article 24 (1) Basic Law because of this collaboration of the Federal Republic of Germany to be regarded as German public power, then the decisive distinction according to consistent case law on the competence of the Federal Constitutional Court between "German" and "non-German" public power would be lost again, since no supra-national or international power in the area of the Federal Republic of Germany can act without some involvement of German State power. The fact that the international character of an organ is not removed by collaboration of the State power of the Federal Republic of Germany in setting it up was already stated in BVerfGE 6, 15 (18) - for the Supreme Constitution Tribunal.

4. The complainants also seek to justify the admissibility of the constitutional complaints by asserting that there is an urgent need for constitutional legal redress because the possibilities of proceeding against regulations of the Council and Commission within the EEC are not adequate to guarantee sufficient protection of fundamental rights of Member State nationals against legislative acts of the Community.

This line of thought is to be rejected, even on considerations of principle. The competence of the Federal Constitutional Court could not be extended however urgent a legal policy need there might be; it is definitively regulated in the Basic Law and the Federal Constitutional Court Act. Specifically, it is not appropriate to regard the EEC system of legal redress as inadequate because it lacks particular procedural institutions of German law and therefore to supplement or improve it via the German courts. This would lead to a blurring of the boundaries between national and supra-national jurisdiction and to unequal legal protection in Member States.

Given this factual position, it need not be gone into whether the complainants could have lodged a constitutional complaint against German legal provisions of the same content or whether, as the Federal Government assumes at any rate for Regulation 135 of the Commission, this possibility would not be given because the complainants are not currently and directly affected by provisions of such a nature.

III.

The decision confines itself to the pronouncement that the Federal Constitutional Court cannot be invoked directly by constitutional complaint against Regulations of the Council and Commission of the EEC.

There is thus no decision as to whether and to what extent the Federal Constitutional Court can measure Community law against the fundamental-rights norms of the Basic Law in the context of a procedure admissibly brought before it - a question which clearly depends on decision of the further-reaching preliminary question whether and in what sense one may speak of a binding of the EEC organs by the fundamental-rights order of the Federal Republic of Germany or - putting it the other way - whether and to what extent the Federal Republic of Germany was able in transferring sovereign rights pursuant to Article 24 (1) Basic Law to free the Community organs of such binding.

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