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The reception of EU facultative mixity in Germany´s constitutional order

  • Mixed agreements have been a preferred form of entering into international treaties chosen by the EU and its Member States, despite the complexities their usage implies. Recent attempts of the EU institutions to prefer the conclusion of EU only agreements to mixed agreements, as a consequence of the broad interpretation of EU exclusive trade competences by the CJEU in Opinion 2/15 are motivated by the hope for increased efficiency in EU treaty making. They, however, provoke criticism with regard to democratic legitimacy and the EU principle of conferral, which constrain the EU to adopt only those legal acts for which it is competent. As this criticism is particularly strong in Germany and led to constitutional challenges of EU only acts, the present contribution will explain the treatment of mixed agreements in the constitutional order of Germany and explore the constitutional challenges that EU only agreements pose to the German constitutional order. This discussion will thus show the German legal order’s continued preference for mixed agreements, in view of the jurisprudence of the German Federal Constitutional Court (FCC). Those constitutional challenges are particularly topical in view of the most recent case law of the CJEU that stressed the political leeway of the EU Council to choose, when it comes to the negotiation and conclusion of EU agreements based on shard competences, between either an EU only agreement or a mixed agreement. This political leeway turns mixity into a facultative endeavour in the hands of the Council. Under the constitutional perceptions of the FCC, such type of facultative mixity meets with considerable constitutional concerns because it replaces what was formerly held obligatory mixity.

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Metadaten
Author:Wolfgang Weiss
URN:urn:nbn:de:0246-opus4-48876
URL:https://brill.com/view/title/56815
ISBN:978-90-04-42197-4
Parent Title (English):EU External Relations Post-Lisbon: The Law and Practice of Facultative Mixity
Serie:Studies in EU External Relations; 16
Publisher:Brill Nijhoff
Place of publication:Leiden
Editor:Merijn Chamon, Inge Govaere
Document Type:Part of a Book
Language:English
Year of Completion:2020
Publishing Institution:Deutsche Universität für Verwaltungswissenschaften
Release Date:2021/01/25
Reviewed Document?:Ja
Online-Document?:Nein
Edition:1. Auflage
First Page:363
Last Page:383
Documents ordered by chairs:Lehrstuhl für Öffentliches Recht, insbesondere Europarecht und Völkerrecht (Univ.-Prof. Dr. Wolfgang Weiß)
Access Rights:Frei zugänglich
Licence (German):License LogoUrhG – es gilt deutsches Urheberrecht