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Germany’s top court blocked Berlin’s extradition of a suspected al Qaeda financier to Spain, ruling on Monday that a key instrument in the European Union’s campaign against terrorism was unconstitutional

The Federal Constitutional Court ordered the release of Mamoun Darkazanli, a German-Syrian fighting his handover under an EU arrest warrant, a new instrument the court said Germany had not implemented correctly.

The ruling could wreck the warrant, one of the bloc’s most significant security initiatives since the September 11 attacks in 2001 and introduced last year to speed up the handover of suspects and boost cooperation in the fight against terrorism.

Darkazanli, a businessman with dual Syrian and German nationality, has been in custody in Hamburg since last October.

He has been accused by the United States of financing al Qaeda and was investigated by German authorities for links to the Hamburg cell that led the attacks on the United States on September 11, 2001. He has not been charged in Germany…

However, the dual national could not be extradited since German law prohibits the handover of its own citizens.

The court argued that the warrant infringed rules governing freedom from extradition and said Germany’s implementation contravened basic rights.

Without a new German law incorporating the EU arrest warrant, Germans could not be handed over to other countries, the court said.

This is a lot more important than it appears to at first sight, the point being that the German Constitution Court is ruling on its acceptance of the supremacy of EU law over state law. It is in fact denying the commonly accepted idea that EU law is supreme to state law; the court is reserving the power to itself to make the finale decision and not recognising the ECJ as the final arbiter in these matters. By declaring the European Arrest Warrant unconstitutional the court has made it absolutely clear that it and not the EU is in charge of what happens in Germany. This if replicated throughout the EU would unravel the whole concept of EU law.

The FCO says on this subject:

Without primacy of EU law, Governments could use national laws to get around common trade rules and standards. Without primacy, we could not guarantee a level playing field for British business in Europe or common standards for British consumers. Without primacy, we could not have turned to the European Court of Justice to overturn the French ban on British beef.

Primacy of European Law is not new. It was already well established as a central principle of the single market well before the UK joined the EEC in 1973 and has been reflected in UK law ever since.

No international organisation could function if domestic law undermined treaties. Whether it’s the WTO, the UN, NATO or the EU, no international organisation could function if its members used national laws to get around international commitments. Once made, agreements with other nations must be kept in good faith and domestic law must respect them.

The European Court of Justice defends those rules. The ECJ decides whether countries have broken the rules. It interprets the laws agreed by the national Governments, reaches judgements and can impose penalties. In recent years the Court has reached verdicts including upholding bathing water rules and penalising toxic waste dumping.

Well it seems the German Court for one is prepared to sand against this argument and because it has done so there can be no supremacy of EU law, either all states accept it or none, if the final arbiter of law lies within the state then it cannot by implication lie with the ECJ.

This case has been on my watch list for some time because the outcome would have serious implications for amongst other things the EU Constitution, which states EU law is superior to state law; as the constitution has been passed by both houses of the German parliament it would appear to be a problem that would need addressing should the Constitution be resurrected.

Telegraph | News | It’s full steam ahead for EU constitution, even after ‘No’ votes: “It’s full steam ahead for EU constitution, even after ‘No’ votes
By Daniel Hannan
(Filed: 17/07/2005)

You may have got the impression that the European constitution was dead - that the French had felled it, and the Dutch had pounded a stake through its heart. If so, think again. The constitution is being implemented, clause by clause, as if the No votes had not happened.

While British ministers chunter on about the document being “in deep freeze”, other countries are plunging ahead with ratification. Since the No votes, three nations - Cyprus, Malta and Luxembourg - have gone on to approve the text. All right, these may not be the three mightiest powers in Europe, but their endorsement means that 13 of 25 members have now said Yes.

Eurocrats see this number as enormously significant. “It is a strong signal that a majority of the member states thinks that the constitution correlates to their expectations,” said the Commission president, José Manuel Barroso, on hearing that Luxembourg had ratified. “The constitution is not dead,” added the Grand Duchy’s prime minister, Jean-Claude Juncker. The European Parliament has duly set up a committee to look at how to proceed with implementation.

Formal ratification by all 25 states is regarded in Brussels as a technicality. To all intents and purposes, the EU is carrying on as though the constitution were already in force. Most of the institutions that it would have authorised are either up and running already, or in the process of being established. My researches have produced the following non-exhaustive list:

• The European Space Programme

• The EU criminal code

• The European Defence Agency

• The common asylum policy

• The mutual defence clause, which replicates Nato’s Article Five

• The External Border Agency

• The Fundamental Rights Agency (née Monitoring Centre for Racism and Xenophobia)

• Autonomous politico-military command structures

• The European External Action Service (that is, the EU diplomatic corps)

• The EU prosecuting magistracy

• The Union Foreign Minister - that silky socialist, Javier Solana

• The Charter of Fundamental Rights

Whenever a chunk of the constitution comes before my committee in the European Parliament for approval, I ask: “Where in the existing treaties does it say that we can do this?”

“Where does it say we can’t?” reply my federalist colleagues, giggling at their own cleverness like Mr Toad in The Wind in the Willows. Pressed for a proper answer, they point to a flimsy cats-cradle of summit communiqués, Council resolutions and commission press releases. The more honest of them go on to explain that this is how the EU has always operated: first it extends its jurisdiction into a new area and then, often years later, it authorises its power-grab in a retrospective treaty.

The 25 member governments, they argue, have endorsed the constitution; so has the European Parliament and so, as of last Sunday, have most national parliaments. It is clear where Europe wants to go, Hannan. So will you please stop being so literal-minded? I carry on feebly with my protest: how can they wish away the referendum results? Surely it counts for something that people have voted No.

“They weren’t really voting against the constitution,” I am told. “They were voting against Chirac. Or against Turkey. Or possibly against Anglo-Saxon liberalism”. Against anything, apparently, except the proposition actually on the ballot paper.

Then again, the EU has never been especially interested in public opinion. The ruling ideology - peace in Europe through political integration - is thought to be too important to be left to the ballot box. If a plebiscite elicits the wrong response from the plebs, they must be suffering from what Marxists used to call “false consciousness”. They misunderstand their true interests. They need better information, more education. And, in the meantime, the project goes on.

It is in this context that we should understand Mr Juncker’s considered view - cheered to the echo by MEPs - that “the French and Dutch did not really vote ‘No to the European Constitution”. We may regard such comments as an entertaining hallucination. We may view the whole Carry On film in Brussels as hilarious. But, when the laughing stops, the constitution will be in place.

So much for the claims that the Primacy of European Law is a central principal of the EU.

The FCO Tackling myths about the European Constitutional Treaty

Primacy of European Lawis not new. It was already well established as a central principle of the single market well before the UK joined the EEC in 1973 and has been reflected in UK law ever since.

No international organisation could function if domestic law undermined treaties. Whether it’s the WTO, the UN, NATO or the EU, no international organisation could function if its members used national laws to get around international commitments. Once made, agreements with other nations must be kept in good faith and domestic law must respect them.

If the German court is to decide then quite obviously there is no primacy of EU law over state law.

EUobserver.com: “German court to decide on European arrest warrant
18.07.2005 - 09:35 CET | By Honor Mahony

Germany’s highest court is today (18 July) to reach an important decision on the application of the European arrest warrant in the country.

The constitutional court will this morning reach a verdict on whether the warrant will be applied to Mamoun Darkazanli, a German and Syrian national suspected of being involved with the terrorist organisation, al-Qaeda.

The core of the decision concerns whether the arrest warrant is compatible with the German constitution.

In 2003, Spain issued an international arrest warrant against Mr Darkazanli for his alleged terrorist involvement. This was then replaced by the EU arrest warrant following Germany’s implementation of the Brussels legislation.

Mr Darkazanli was arrested in Germany in October last year and a German court then decided the Spanish request was legal.

However, Mr Darkazanli appealed the decision in the federal constitutional court saying his fundamental rights as well as the principles of rule of law and democracy under the German constitution were being impinged - his appeal calls into question the essence of the warrant.

The EU arrest warrant came into force last year, after serious foot-dragging by member states, and allows police to avoid lengthy extradition procedures.

The European Commission has deemed the warrant a success as it has enabled the arrest of several people this year - although only a fraction of those have been related to terrorist activities.”