According to a list of pending cases that was published last week, the German Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) will be considering a constitutional complaint filed by ThyssenKrupp. The complaint alleges that the Commission’s decision fining ThyssenKrupp EUR 3.2 million in 2006 and the EU Court judgments which upheld this decision breached fundamental human rights and fundamental constitutional principles of the German Constitution (Grundgesetz).
The case could open a new front in the battle for respect of fundamental human rights in EU competition procedures. In Solange II (1984), the BVerfG acknowledged that the EU had implemented adequate provisions for the protection of fundamental human rights and as long as these were effectively applied, in particular by the EU Courts, no review of the acts of EU institutions could take place. Put simply, this means that when (and if) it examines ThyssenKrupp’s complaint, the BVerfG will have to decide whether fundamental human rights are effectively respected in EU competition proceedings and whether the CJEU sufficiently protects them. Such an assessment would definitely make for an interesting read in the aftermath of the ECtHR judgment in Menarini. Especially in the case at hand, where Advocate General Bot had found that the Commission decision breached fundamental principles (a.o., personal liability in §169 and action within reasonable time, §207) but he was not followed by the CJEU.
ThyssenKrupp’s complaint could of course also revive the 40-year old dialogue between the BVerfG and the EU Courts, concerning the principle of supremacy of EU law. If the entire EU legal order is a new and independent legal order as the EU Courts pronounced in seminal judgments, then how can its acts be under review by national courts (even constitutional)? And conversely, if the Member States remain sovereign and “masters of the treaties”, how can they allow their constitutional identity to be eroded by the acts of another legal order? Before deciding on the fate of ThyssenKrupp’s complaint and potentially addressing the supremacy questions, the BVerfG will have to consider carefully its relationship with the EU Courts and the significant political implications of its judgment.