Austrian Hub’s Evening Lecture on the Ultra Vires Doctrine of the German Federal Constitutional Court


On 13 October 2021, the ELI Austrian Hub and the University of Innsbruck organised another hybrid evening lecture on ‘The Ultra Vires Doctrine of the German Federal Constitutional Court – Crisis or An Opportunity for Europe?’.

The lecture was delivered by Dieter Grimm (Professor, Humboldt University Berlin), who explored the importance of the ultra vires doctrine applied by the German Federal Constitutional Court in respect of the European Union’s actions.

Prof Grimm considered that the long-standing conflict of competence between the German Federal Constitutional Court and the Court of Justice of the European Union (CJEU), which recently culminated in the so-called PSPP ruling (BVerfG, 2 BvR 859/15) of the German Federal Constitutional Court, was not only the result of a hierarchical power struggle between the two supreme courts but rather, it was also about the fundamental legal dogmatic question of whether, in addition to the CJEU, a national supreme court could also declare the actions of EU institutions invalid and whether it had the competence to determine that an EU institution had acted ultra vires.

Prof Grimm pointed out that the German Federal Constitutional Court – unlike the Polish Constitutional Court recently – did not fundamentally question the primacy of application of European law, but argued that the Union can only be responsible for those measures that are assigned to it according to the principle of conferral (Art 5 TEU). The unauthorised assumption of nation State sovereignty, however, is protected by the principle of democracy (Article 20(1), (2) of the German Constitution) and thus also by the guarantee of perpetuity (Article 79(3) of the German Constitution). The ultra vires review must therefore also be available to the Federal Constitutional Court and is necessary to protect against an unauthorised assumption of competences by the Union.

In contrast, the CJEU takes the view in this context that European law has emancipated itself from the will of the Member States and finds its basis of validity in a sui generis source of law, which has its foundation directly in the treaties. From this point of view, the CJEU also derived its sole declaratory competence with regard to possible excesses of competence by EU institutions. Furthermore, Prof Grimm noted that in the past decades, the CJEU has also actively promoted pan-European integration efforts in and through its case law and, as a result of this, has, for example, applied the principle of proportionality more strictly to the national law of the Member States than to European law.

According to Prof Grimm, the solution of the dispute on competence cannot be reached on the level of European law, since both supreme courts would rely on the treaties but draw different conclusions from them. Since both courts justify their competences to find ultra vires acts by EU Institutions in a dogmatically defensible way, infringement proceedings against Germany would cause more harm than good. In this respect, the only viable solution would be to signal a mutual willingness to engage in a dialogue both in Karlsruhe and in Luxembourg.

The lecture was followed by comments from Walter Obwexer (Dean of the Faculty of Law and Professor of European Law, University of Innsbruck), who expressed a different view on the subject in certain nuances. This was followed by a lively discussion with the participants on, among other things, the idea of a European ‘competence court’ and the significance of the supranational character of European law and the implications of the recent ruling of the Polish Constitutional Court, which denies the primacy of European law per se.

The event was moderated by Susanne Augenhofer (Professor, University of Innsbruck).