In an editorial published Wednesday by the Frankfurter Allgemeine Zeitung, former German president Roman Herzog vehemently attacked the current state of the European Court of Justice (ECJ). Herzog believes that the ECJ has lost the trust of the EU member states by its “astonishing” rationales for interfering in national legal systems and member state competencies.
His remarks come on the eve of the German Federal Constitutional Court’s decision regarding the ECJ’s 2003 Mangold judgment. In the Mangold case, the ECJ determined that German labor policy violated an EU directive on non-discrimination. The German legislation expressly prohibited age discrimination, while the EU directive permitted it in certain circumstances. As in the famous Solange II judgment, the FCC is again being asked to address the question of EU law’s fundamental supremacy.
Herzog maintains that the ECJ has overreached as both labor market and social policies remain state competencies. As age discrimination in the labor market does not cross borders, he believes that the ECJ has overstepped the boundaries of the principle of subsidiarity. He wrote that past cases have shown that “the ECJ deliberately and systematically ignores fundamental principles of the Western interpretation of law, that its decisions are based on sloppy argumentation, that it ignores the will of the legislator, or even turns it into its opposite, and invents legal principles serving as grounds for later judgments. They show that the ECJ undermines the competences of the Member States even in the core fields of national powers.”
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