"ReDCE Especial The rule of Law 1/2024 (Francisco Balaguer Callejón and Miguel Azpitarte ed.)"
"ReDCE Especial The rule of Law 1/2024 (Francisco Balaguer Callejón and Miguel Azpitarte ed.)"
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1.1. The universal characteristic of the authentic constitution — Democracy as an essential component of freedom.
Constitutionalism is human-centered, it is anthropocentric. The central value is human dignity, which necessarily includes the principle of human freedom and which belongs to every human being by virtue of his/her humanity. The three values: human dignity, freedom and equality form the core of the value-constitutionalism, which is universally valid, as far as it is a question of real constitutions (and not only of an organizational statute, which is called a constitution but negates these values as a whole or in part).
Freedom includes as an essential component the political freedom, democracy. Freedom does not only mean the absence of obstacles to individual action or omission, but also and especially means determination, or more precisely: co-determination, of the limits immanent to the concept of freedom. These limits result from the fact that freedom is due to every human being on the basis of his or her dignity. The freedom of the individual is limited by the freedom of the other. Dignity, freedom and equality are intrinsically linked. The freedom of the other and the freedom of all (which is expressed in the common interests, in the public good) determine the limits of individual freedom. Freedom therefore also means accepting these limits and defining them by means of common regulations, i.e. laws, i.e. pointing them out and giving them organizational reality, i.e. making them binding for the community.
In summary: Freedom is the absence of individual restraint, i.e. individual free space, and free (but integrated in the majority decision among the community members) (co-)determination of the limits of this—fundamental— individual free space.
Thus, freedom and also democracy means self-determination of man, consent to legitimize interventions in his/her freedom through the law, which is adopted by the representatives of the people, i.e. the individuals. In addition, democracy also means self-determination in the shaping of his/her life, as far as the public authority, that is, politics carries this out through the state institutions.
While human dignity is inviolable, i.e. cannot be restricted and cannot be weighed against other values, freedom is subject to limits so that everyone is able to enjoy freedom and necessary common interests can be protected. However, freedom may only be restricted for a legitimate purpose and only to the extent that it is absolutely necessary, without freedom being affected in its essence. It corresponds to human dignity only if freedom is recognized as a principle and the restriction of freedom is regarded as an exception that must be legitimized.[01]
Democracy as political freedom must be functionally fully realized. Certainly, there are also limits related to democracy, such as in Germany the thresholds for candidates to enter Parliament, in the frame of the five percent clause, or the prohibition of parties that fight against the liberal constitutional order, or restrictions on receiving donations for election campaigns, and so on.[02]
1.2. The constitution as a living instrument
The three fundamental values of human dignity, freedom and equality are inherent in a constitutional order that is necessarily focused on the human being. Therefore, it is irrelevant whether these values are written or unwritten. A constitution does not contain only the text written at a particular historical moment of constitution-making or a subsequent constitutional amendment. The constitution is a comprehensive system that, by its anthropocentric nature, is always complete in the basic values related to human beings, even if some of these values are not explicitly mentioned in the constitutional text. This is the case with human dignity[03], which was only increasingly anchored in the constitutional texts in the second half of the 20th century[04], but this can also be the case with the mention of the rule of law, as this was only explicitly designated as existing in Luxembourg, by the constitutional jurisprudence[05].
It must also be taken into account that the constitution is a living instrument, the interpretation of which makes it necessary to understand the constitutional system from the point of view of the moment of interpretation. Especially in the field of values, concepts are changing, breaking away from the traditional content and adopting new orientations. The constitution must therefore be interpreted dynamically and evolutionarily[06].
2.1. Legality and constitutionality as rule of law criteria – the external dimension of rule of law.
The rule of law is the bridge between value-constitutionalism and institution-constitutionalism. The rule of law means that state organs exercise the public authority vested in them over individuals only in accordance with the law. Law is the legal order in a hierarchical structure, i.e. with the constitution at the top. Recognizing the primacy of the constitution is indispensable for the rule of law. The rule of law means both, a state governed by legislation and by the constitution. Only laws that conform to the constitution are relevant sources for the rule of law. In addition, there are general principles of law, that (today rather rare) customary law, but all this under the primacy of the constitution.
According to the modern understanding of the rule of law, the basis of the rule of law is constitutionality[07], not just legality. The latter was the beginning of the rule of law in the 19th century, an important victory of the law, but only the first stage.[08]
Legislation as a result of parliamentary activity (or a referendum) transfers politics via the majority decision into law. Through the representatives of the people it expresses the will of the individuals, the people. But the law is subject to the Constitution; it expresses the general will only if it is in accordance with the Constitution. This correlation was articulated by the French Conseil constitutionnel in its 1985 decision La Nouvelle Calédonie in a classic dictum: "La loi n'exprime la volonté générale que dans le respect de la Constitution".[09]
While legislation is politics converted into law, the Constitution, the basic democratic act of society, is consensus that stands above politics. There are two complementary spheres that appear here: the sphere of politics and that of the constitution. Politics may develop freely, but must keep within the framework of the constitution, i.e. must remain in its area and not cross the border to the area of the constitution, thus unconstitutionally act. The constitutional jurisdiction can (and must) correct a possible transgression and restore the intended order of the law in accordance with the constitution.
It should be added that the rule of law today is linked to the principle of open statehood, and therefore to international law and, for the member states of the European Union, to supranational law. Since this law binds the state, it cannot be excluded from the idea of the rule of law.[10]
2.2. The value-orientation of rule of law.
The rule of law is also value-oriented. This results from the commitment of state institutions to the constitution, which recognizes the values that shall be binding for the state and society, i.e. from the primacy of the constitution, and also from the indispensability to bring the human-related basic values to bear. These values constitute the basic orientation of the state, which identifies itself with them. If it acts according to the law, as a state governed by the rule of law, it must also act according to these values.
The structure and function of the institutions must correspond to these values, and they must implement these values in all their activities that are relevant to people.
The value of democracy as political freedom and self-determination is reflected in the right to vote, in the organization and functioning of the parliament, and in any direct participation opportunities given to citizens.
Democracy is a central value directly related to human dignity. This has been stated by the German Federal Constitutional Court on several occasions, most recently in its decision on the constitutionality of the Lisbon Treaty.[11]
So we see that without democracy there can be no guarantee of human dignity and no equality. The rule of law, which is the rule of law only in its value-orientation, is inconceivable without democracy. These values are interdependent and form a functional unit.[12]
2.3. Majority rule as the instrument to realize democracy.
Democracy, to be effective and real, depends on majority rule. This is an organizational principle that society has agreed upon. It is contained in the constitution or the parliament's rules of procedure or, in the case of referendums, in the relevant law.
It conforms to the idea of democracy, the self-determination of the individual, as this self-determination is embedded in the community. This principle of organization is explicitly or implicitly part of the "contrat social"; the freedom of the individual is limited from the outset by the freedom of the other members of society. This limitation is immanent to freedom and thus also to self-determination and is a consequence of the principle of equality. The legitimacy of the majority decision is the solution of the tension between freedom of the individual and equality in society.[13]
It is evident that unanimity is incompatible with the idea of self-determination, since it excludes the equality that is necessary to freedom.
Not only simple majority (of the present and deciding decision makers), but absolute majority (majority of the legal members of the deciding institution) or even a reinforced (qualified) majority[14] is possible for abstract, generally effective decisions, if this is appropriate in each case. Qualified majorities can be demanded however only with serious circumstances, a general introduction of this aggravated decision mode would be however democracy-opposing.
Majority decision is however not in the sense of Rousseau a fictitious correct decision. The content of the decision remains unaffected by the decision modality; it is not correct in content as a result of acceptance by the majority. Even an unconstitutional law does not become constitutional by majority decision. The constitutional control of norms is based precisely on the verification whether a majority decided law corresponds to the constitution or not. The Rousseauian idea of the ever-errant minority[15] is not tenable from a democratic dogmatic point of view.[16]
2.4. Representative democracy and separation of powers.
Democracy means rule by the members of the people. The society organizes itself (traditionally in the state) in order to secure its existence and to cope with the common tasks at present and in the future. THE primary democratic act is the creation of the constitution of this community, the contrat social.
Within this constitution, the accomplishment of the common tasks takes place through the exercise of public power, either in a direct or in a representative way.
Direct democracy in a comprehensive form is not possible in today's complex state. Representation of the people by trusted representatives is today's common, legitimate and appropriate model, often in hybrid form with plebiscitary elements, but occasionally also in pure form, as in Germany at the federal level. The "identification of the governed and the governed" is not abolished by this representation, it is only in the form of implementation differently designed than in the direct decision of the people.
The act of trust in the appointment of the mandate, i.e. the election, preserves this functional unity. For this to be the case and for the representative exercise of popular sovereignty to be adequate, efficient and legitimate, the act of appointing a mandate must be free. This includes its transparency and efficient verifiability. Its relationality to all members of the community, that is, its equality in terms of participation and outcome, remains indispensable. In order for the whole people to give its mandate, this act must also be general, i.e. all members of the community must be able to take this act in the same way.
The mandate is based on the responsibility for the whole, the entire state. The trust is given in the election for the exercise of the overall will of the people, not for a particular will. Only the "free" mandate is legitimate to formulate the "general will of the people".
The basic orientation of the mandate holder is freely determined by him/herself; it can be preformed by a party affiliation (which, however, does not finally bind the mandate holder in basic orientation and detailed questions). The people freely choose the trustees who will then stand for election. this also means that the pluralism of the people's orientations is reflected in the selection of them. In modern societies, this is essentially done in an organized form, in parties that formulate orientations and that steer and accompany the process preparing the election. They also continue the political process after the election and parallel to the elected bodies, since it is a constant articulation of the people's will and is in constant communication with the political resolution process in the decision-making bodies. Through this dialogue, influence is exerted on the trustees and their decisions are (co-)determined. [17]; At the same time, preparations are made for the next election, which, as a basic democratic requirement, makes possible alternative orientations.
Representative exercise of power can and should be usefully combined with direct democratic elements, as an important element in permanently securing the consensus of representatives and people.[18]
Democracy leads to legitimate rule exercised by the will of the majority. The majority principle is, as already pointed out, inherent in the democratic system;[19] unanimity, achieved by agreement, is the most compatible form of decision-making with the idea of individual self-determination, but is generally unrealizable.[20] The exercise of power, brought about by the will of the majority, is a rule, governance[21], limited in time and to be reestablished at periodic intervals. During the entire duration of governance, the exercise of public power must necessarily be oriented toward the rule of law and bound by it. Only then is governance in conformity with democracy. This clearly shows the necessary correlation between democracy and the rule of law.
Not only the representatives of the people in parliament, but also the government and the other organs of state are representatives of the people. This clearly shows that the derivation of all institutions which exercise public power from the people, is a fundamental democratic requirement. This chain of democratic legitimacy[22] must be in place for democracy to flourish. This chain of legitimacy encompasses the institutions, the holders of office and the content of public authority.
In making the exercise of public power, governance, comply with the principles of democracy, and the rule of law (1) internal and (2) external requirements must be fulfilled:
2.4. Governance-internal requirements related to democracy and rule of law.
The governance-internal constitutional requirements are: Those exercising power must be appointed to their institutional position legitimately, i.e. in conformity with democracy and the constitution, by means of an election in conformity with democracy.[23] Governance also must be exercised legitimately in its entire duration[24], i.e. on the basis of a democracy-conform, freedom-oriented structure of the respective institution and in a democratically legitimate, constitutionally secured function mode.
The governance organization must therefore also conform institutionally to the requirements of the rule of law. Governance means the exercise of power, which presupposes a (relative) concentration of power and restricts the freedom of the individual (occasionally called oligarchic element)[25]. It must be moderated by an institutional structure that reflects the concepts of democracy and of the rule of law, especially of the separation of powers and functions.
Counteracting the abuse of power and thus the illegitimate restriction of freedom is the inter-personal, inter-institutional and inter-corporative (so in regional and federal states, in the relationship of a state to a supranational organization such as the EU, etc.) division of the exercise of power and its "decentralization".[26] The necessity of an appropriate functional allocation to the individual bearers of the public power (in the legislative, executive and judicial area), which flows from the separation of powers, has a power-limiting and thus freedom-securing effect.
Authentic democracy means self-determination [27] and preservation of freedom; democracy is political freedom in the emergence and continuation of governance, legally reinforced and secured by separation of powers, division of functions and compliance with the constitution.
2.5. Governance-external requirements related to democracy and rule of law.
Democracy and rule of law requirements also outside the organization and exercise of public power are to be fulfilled:
The legal system and legal practice must comprehensively enable the parliamentary minority to also become the majority [28], in other words that alternatives to the majority can form freely, can be made known and are available in the electoral act. This requires a multi-party system [29] with equal opportunities, the existence of parties committed to democracy (which are internally democratically structured, independent of the state and also at a distance from party-financing interest groups [30]), the greatest possible transparency of internal state and also relevant social processes, furthermore in particular the free activity of the communication media of whatever kind, the guarantees of freedom of assembly and association, of expression and the safeguarding by political and judicial control [31]. Of particular importance is the independence of the courts, access to jurisdiction, the comprehensive possibility of control by the courts and so on. All this must be underpinned by a democratic culture that recognizes the fundamental importance of this concept.
The question of the relationship between democracy and the rule of law is not limited to the state sphere, but also and especially arises in the supranational field of the EU and also in regional and universal international law.
Constitutionalism also exists outside the state. It exists whenever sovereign power affects individuals, restricts their rights or, more generally, has a significant influence on the way they live their lives. [32] Today's situation is characterized by "open statehood" [33], i.e. that the traditional organizational form of human coexistence, the state, is becoming aware of its interdependence with the members of the international community and is taking on organizational forms that functionally substitute for the state, at least in part. At the same time, there is a growing willingness to recognize international law as authoritative also for the internal sphere of the state, for example, to interpret fundamental state rights in the light of international human rights.[34] The idea of constitutionalism has extended to the transnational and international level. This has also fostered a willingness to understand extra-state influences on the individual as a constitutional matter. The supranational order of the EU is developed as a parallel order to and as a partial substitution order of the state, so that state mechanisms and concepts have been transferred to it.
Fundamental rights, guarantees of the rule of law, the basic ideas of human coexistence (the recognition of human dignity, and with it the recognition of the fundamental freedom of the individual) could and had to be transferred in this way.
The legal system of the EU is very similar to domestic law in its system of values. This also results from the fact that the reference point of all power is the human being, whose freedom is to be recognized as a principle, as an anthropological axiom.
The legal system of the EU is autonomous, but functionally united with the legal systems of the member states. Article 2 of the EU Treaty lays down the values common to the Union and its member states; they correspond to the anthropocentric fundamental values already mentioned in relation to the state: human dignity, freedom and equality as the basic values. Freedom includes democracy as its special form, and fundamental rights as its specifications.
The development of constitutional values, as they are known from the state, also in the supranational order is consistent, since the supranational power acts as public power on the human being, can restrict his/her freedom and also shapes his/her life in many respects. Due to the primacy of EU law, supranational legal norms prevail over national law, even over national constitutional law [35]. EU law is directly applicable in the member states and forms part of their legal order.
The rule of law is also of fundamental importance for international law. Only compliance with contractual and customary obligations can secure peace and realize the goals of international law. However, international law also guarantees fundamental and human rights and is therefore an important pillar of the rule of law. Moreover, universal and regional international law also guarantees freedoms and rights directly related to democracy, such as the right to free, fair and periodic elections as the core of democracy. Also, the rights to freedom of expression, assembly and association, etc., guaranteed under international law, are direct supports of democratic activity.[36]
EU law also contains explicit values for the EU's own legal system, in particular in Art. 2 of the EU Treaty and specified in the EU Charter of Fundamental Rights. These values must also be present in the member states; this is a prerequisite for admission, but also a permanent condition for membership. The current disputes with Poland and Hungary are based on the fact that these obligations are not being met by these states.[37]
In this context, it should be noted that the functional core of the values must be realized on both sides; full agreement on the details of the concept of values is not required. However, the competence to define lies with the EU.
We can establish the same constellation of values as in the state. dignity, freedom and equality.
The principle of proportionality is also known and applied in the same way as in the member states. The restrictions on fundamental rights as provided for in the charter are comparable to those in the state sphere.
As a result, we can state the following:
Democracy and the rule of law are not opposites, but are part of the basic value system of the constitution, whose individual elements form a functional unit. They are interdependent and one element is not conceivable without the other. They can be written in the constitutional text or exist as unwritten principles of the constitutional order. Democracy is an —important— subcategory of the principle of freedom, namely political freedom of the individual [38], which consists in (co-)determining by election his/her representatives who exercise public power on his/her behalf and, in particular, in laying down by law the limits inherent in the individual's freedom for the benefit of other individuals.
The rule of law is the bridge between values and institutions: these are obliged to orientate themselves in their structure and functioning to the values and to observe and realize them in their activities. The rule of law means being bound to the values of the constitutional order and to all norms of law, with the constitution at the top and also external law (international law, EU law).
The rule of law means that the state must act exclusively in accordance with the law. The constitution and the other norms claim validity by virtue of their normative existence alone; the primacy of the constitution, i.e. its supremacy over all other sources of law and thus its validity for the addressees named in the constitution, is today an established component of constitutionalism. The rule of law expresses this claim to validity for the entire state and for all sources of law, within the framework of their hierarchical order. The fact that public authority is to be exercised only in conformity with the law and that political decisions are not possible without being bound by the law for certain areas is demanded by the principle of the rule of law. Exclusivity is therefore inherent in this principle.
The adequate functionality of the law is guaranteed by the principle of the rule of law. Its bridging function (binding of institutions to constitutional values) is supplemented by requirements related to the law, which are connected with this principle: Clarity and certainty of the law, legal certainty, protection of trust in the law, i.e., in principle, no onerous retroactivity, protection of legitimately acquired rights, protection of the due application of the law through judicial control, and adequate and limited realization of the law through separation of powers.[39]
Democracy is thus necessarily linked to the rule of law. The rule of law is inconceivable without democracy; as political freedom, it is an essential part of the anthropocentric order of fundamental values, which transfers the principle of the rule of law to the realm of state institutions as a binding orientation.
Democracy without the rule of law is inconceivable. Freedom is given only within the constitutional order and is restricted by the constitution-conform laws. The will of the people is expressed in norms created by its representatives or directly. The basis is the constitution, within the framework of which laws are enacted. The priority that the constitution presupposes implies that the acts that can be traced back to the people must remain within the framework of this basic legal order. The activities of the state (legislation, application of laws) are permitted by the people only within the framework of this basic order. [40] This is the core of the rule of law.
The rule of law is not identical with democracy, as can be seen from what has been said so far; the rule of law specifies democracy as the rule of the people in the sense that not all forms of democratic decision are in conformity with the rule of law, but only those that correspond to the highest democratic decision, the constitution. Democracy and the rule of law are thus not "one at the root" [41]. There are two dimensions to it: one is the rule of the people, i.e. individual participation in state action as an important expression of freedom [42]; the right to participate in the shaping of lawmaking politics in conformity with and implementation of basic constitutional values; and the other is the recognition of the law and, in particular, of the constitution and its basic values as a binding orientation for all state action.
But we cannot separate democracy from the rule of law. In today's constitutionalism, democracy is bound to the constitution and its set of values. Freedom, including political freedom, is realized only in the name of three fundamental values: human dignity, freedom as a principle, and equality. Democracy is not realized by mere numbers, not by the numerical majority. In its constitutional act, democracy has embedded itself in this basic order of values, so that only value-based democracy is genuine democracy. Even if the two principles, democracy and the rule of law, are not identical, they are functionally connected. They are not the same, but for their functional realization, the two must work together.
In earlier perceptions this functional unity was not yet fully developed. There were also only rudiments of democracy, for example in ancient Athens [43] or in Germany before Weimar, since the right to vote was not extended to women until 1918. [44] The protection of fundamental rights was also completed only under the regime of the Basic Law and with the help of constitutional court interpretations. The rule of law has evolved throughout history, from small beginnings to today's (relative) perfection. The development of democracy and the rule of law did not run in parallel, although there were mutual impulses. The contemporary state of development of constitutionalism, however, compels us to recognize the functional unity of both basic principles.
Resumen: Ya desde sus inicios, la Unión Europea surge como una comunidad de derecho y valores. Además, con el tiempo ha ido creando nuevos instrumentos para garantizar el respeto por estos postulados. Concretamente, mediante instrumentos jurídicos de protección, así como la posibilidad de imponer sanciones por vulneración de estos principios.
Respecto a los instrumentos legales e institucionales, la ciudadanía de la Unión Europea cuenta con la posibilidad de participar directamente, vía elecciones al Parlamento Europeo, así como con la vía jurisdiccional del Tribunal de Justicia de la Unión Europea. Por otro lado, se han generado instrumentos de imposición de multas a los Estados, limitación de la participación de los Estados miembros, además de la novedosa suspensión de ayudas de fondos “NextGenerationEU”. Además de existir la posibilidad de aplicar sanciones contra particulares y organismos oficiales vía TJUE.
Palabras claves: Valores comunes de la UE; instrumentos legales; protección judicial; sanciones; multas; limitación de derechos; suspensión de ayudas.
Abstract: From its very beginnings, the European Union was established as a community of law and values. In addition, over time it has created new instruments to ensure respect for these principles. Specifically, through legal instruments of protection, as well as the possibility of imposing sanctions for violations of these principles.
Regarding legal and institutional instruments, the citizens of the European Union have the possibility of participating directly, through elections to the European Parliament, as well as through the jurisdictional protection of the Court of Justice of the European Union. On the other hand, instruments have been created to impose fines on the States, limit the participation of the Member States, as well as the novel suspension of aid from “NextGenerationEU” funds. There is also the possibility of applying sanctions against individuals and official bodies via the CJEU.
Key words: Common values of the EU; legal instruments; judicial protection; sanctions; penalty pay; limitation of rights; suspension of payments.
Recibido: 2 de mayo de 2023
Aceptado: 2 de mayo de 2023
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[01] R. Arnold, Struttura ed interpretazione della Costituzione: alcune riflessioni, in: Scriti in onore di Fulco Lanchester, vol. I, 2022, p. 41–56.
[02] See for example s.6.3 of the German Federal Electoral Act; Article 21.2 Basic Law (BL; Grundgesetz) and s. 32 German Political Parties Act (PPA); s. 25PPA as to donations.
[03] See F. Balaguer Callejón, in Manual de Derecho Constitutional (F. Balaguer Callejón coord.), Vol. I, p. 120 y 121; P. Häberle, Die Menschenwürde als Grundlage der staatlichen Gemeinschaft, in: Isensee/Kirchhof, Handbuch des Staatsrechts, Vol. II, 3rd ed., 2004, § 22.
[04] R.Arnold, Constitutional developments in Central and Eastern Europe as a contribution to emerging European Constitutional Law, in: Internationale Gemeinschaft und Menschenrechte, Festschrift für Georg Ress, Berlin 2005, 389 – 397.
[05] See Constitutional Court of Luxembourg, decision 00146 of 28 May 2019, Journal Officiel, Mém. A, no. 383 of June 4, 2019.
[06] See Juge constitutionnel et interprétation des normes, XXXIIIe Table ronde internationale des 8 et 9 Septembre 2017, Annuaire International de Justice Constitutionnelle 2017, Economica/Presses Universitaires d’Aix-Marseille, Paris, Aix-en-Provence 2018. See also D.A.Strauss, The living Constitution, https://www.law.uchicago.edu/news/living-constitution.
[07] With clearness F. Balaguer Callejón, Fuentes des Derecho, 1992, p. 28.
[08] See K. Stern, Das Staatsrecht der Bundesrepublik Deuschland, vol. I, 1977, p. 605 et seq.
[09] Decision of August 23, 1985, 85-197 DC/27.
[10] See in particular the Görgülü decision of the German Federal Constitutional Court (FCC) vol. 111, 307, 317, 319.
[11] FCC vol. 123, 267, 341, 345.
[12] R.Arnold, L’État de droit comme fondement du constitutionnalisme européen, Revue française de droit constitutionnel, numéro spécial, 25 ans de droit constitutionnel, no 100 (Décembre 2014), pp. 769 – 776.
[13] On the necessity of majority voting in democracy: K.Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 18th ed., 1991, paras.140 et seq., 142 - 144 (p. 59-60); R.Zippelius, Allgemeine Staatslehre, 16th ed.,2010, p. 109-110; P. Badura, Die parlamentarische Demokratie, in: J.Isensee/P. Kirchhof Handbuch des Staatsrechts, vol. II, 3rd ed. ,2004, § 25 para.31 (p. 517-518); H. Maurer, StaatsrechtI, 6th ed., 2010, §7 paras. 58 et seq. (p. 198-200). Recently with in-depth Dreier/Dreier, 3. Aufl. 2015, GG Art. 20 (Demokratie) [Verfassungsprinzipien; Widerstandsrecht] paras. 67-72
[14] Maurer (note 11),ibidem, para. 62.
[15] J.-J. Rousseau, Du contrat social, Livre II, chap. 3) , éd. Garnier-Flammarion, Paris ,1966, p. 66/67.
[16] Rightly R. Zippelius, Allgemeine Staatslehre, 16th ed., 2010, p. 108; H.-D-Horn, Demokratie, in: Verfassungstheorie, O.Depenheuer/Chr. Grabenwarter (eds.), 2010, § 22 (p. 743 – 776, 760).
[17] See also G. SYDOW, in: G.Sydow/F. Wittreck, Deutsches und Europäisches Verfassungsrecht I, 2nd ed., 2020, p. 97 et seq.
[18] R. Zippelius (note 14), p.160.
[19] See note 11.
[20] K. Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 18th ed., 1991, p.59, 60; Sydow (note 15), p.100.
[21] Governance means rule, not only government and includes also and in our context primarily the function of parliament, the legislation.
[22]Dürig/Herzog/Scholz/Grzeszick, 97th suppl. January 2022, GG Art. 20 paras 123 e seq.
[23] See Dürig/Herzog/Scholz/Klein/Schwarz, 96th suppl., November 2021, GG Art. 38 paras. 67, 68. See also FCC vol. 20, 56, 98/99 and 113.
[24] FCC vol. 20, 56, 99/100.
[25] Zippelius (note 12), p. 152,153.
[26] Zippelius (note 12), p. 160,161. See also p.250 et seq., 254 et seq.
[27] Rightly G. Sydow (note 15), p. 102 (para. 28).
[28] K. Hesse (note 13), p. 60.
[29] FCC vol. 5, 85, 200, 204, 228; vol. 144, 20, 210, 284.
[30] On the need to be free from the influence of the state see S.-Ch. Lenski, Parteiengesetz, 2011, §18 Parteiengesetz, paras. 4 – 6 (p. 181).
[31] See K. Stern (note 6), p.461 et seq.
[32] See R.Arnold, The relation between Constitution and Global Administrative Law, in: M. Grahn-Farley, J.Reichel And M. Zamboni (eds.), Governing with public agencies. The development of a Global Administrative Space, Skrifter utgivna Juridiska fakulteten vid Stockholms universitet nr 90, 2022,p. 101-117, 104 et seq.
[33] This term, coined by Klaus Vogel, Die Verfassungsentscheidung des Grundgesetzes für eine internationale Zusammenarbeit, 1964, has meanwhile developed into a term generally used in the German legal debate to describe all phenomena of internationalization and Europeanization of constitutional law, an open term that encompasses the interpretation of national constitutional norms that is friendly to international and European law as well as the "integration responsibility" of the state enshrined in Article 23 of the Basic Law.
[34] For Germany see FCC vol. 111, 307.
[35] According to the German Federal Constitutional Court and some courts in other member states, this is limited by constitutional identity, which in Germany has been equated with the areas withdrawn from constitutional reform under Article 79 (3) of the Basic Law. See FCC vol. 123, 267, 344,353/354,397, 399.
[36] See Chr. Grabenwarter/K.Pabel, Europäische Menschenrechtskonvention, 6th ed., 2016, § 23 (p.380-469).
[37] See Judgement of the Court (Full Court), 16 February 2022, Case C‑156/21, Action for annulment of Regulation (EU, Euratom) 2020/2092, by Hungary, supported Poland; ECLI:EU:C:2022:97
[38] Democracy is related to the individual as part of the people. The people is the sum of the individuals in the political unit of the state. This is the sum of the individuals in the political unit state. So also H.-D. Horn (note 14), p. 770/771 (para. 63).
[39] For the relation of democracy and separation of powers see E.-W. Böckenförde, Demokratie als Verfassungsprinzip, in: Isensee/Kirchhof, Handbuch des Staatsrechts 3rd ed., 2004, § 24, paras. 87 et seq.
[40] See also H.A.Wolf, Das Verhältnis von Rechtsstaatsprinzip und Demokratieprinzip, Staat-Souveränität-Verfassung. Festschrift für Helmut Quaritsch zum 70. Geburtstag, 2000, p.73 – 93, p.88: "Both principles not only pursue the same goal, but also have a common core. Both are based on the freedom of the citizen and are at the same time oriented towards it." For the rule of law guarantees imposed on democracy see E.-W. Böckenförde (note 37), paras 92 et seq.
[41] Not one at the root („an der Wurzel eins“ ) as P. Pernthaler tries to demonstrate with reference to René Marcic’s dictum: Sind Demokratie und Rechtsstaat wirklich „an der Wurzel eins“? in:Der Rechtsstaat vor neuen Herausforderungen, Festschrift für Ludwig Adamovich zum 70. Geburtstag, 2022, p. 631–654.H.A. Wolff (note 37), p.93: Both principles are based on the autonomy of the human being and concern independent forms that have developed historically”.
[42] See also H.A.Wolff (note 37), p.88.
[43] See H.A.Wolff (note 37), p. 84/85. See also E.-W- Böckenförde, para. 84.
[44] For the historical development of the rule of law in Germany see E.-W. Böckenförde (note 37), paras. 10-16.
