eurealist.co.uk

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.