Hofmeister Hannes Herbert Viktor - Free University of Bolzano/Bozen

Name of the Act

Bayerischen Verfassungsgerichtshofs, Entscheidung vom 15.02.2017 - Vf. 60-IX-16



Type of Act


Reference to the Constitution

Art 23 Basic Law

Art. 70 Bavarian Constitution

EU Law

Council Decision (EU) 2017/37, of 28 October 2016 on the signing on behalf of the European Union of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part


In 2009  the negotiation between the European Commission and Canada for a free-trade agreement commenced, i.e. The Comprehensive Economic and Trade Agreement (CETA). The CETA aims at reducing trade and investment barriers and at respecting European standards on labour, health and environmental law. Nevertheless, the CETA was criticised and object of plenty of manifestations and demonstrations in many European cities, especially in Germany. Initially, it was unclear who had the competency (and responsibility) to ratify the agreement: a) at the first level, solely the European Union or also the Member States of European Union b) in that last case and at the second level, solely the national legislator or also the regional legislator.

Concerning question a), in July 2016, the European Commission decided that CETA has to be qualified as a "mixed agreement" and thus to be ratified through not only European, but also national procedures. On 15 February 2017, the European Parliament approved the agreement.

Concerning question b), Initially, 125.000 citizens asked the Constitutional Court to stop the German Government from signing CETA. That invocation of Constitutional Court was the occasion to clarify that the trade policy is a prerogative of Federation Government and European Union (BVerfG, Urteil vom 13. Oktober 2016 - 2 BvR 1368/16). Nevertheless, 30.000 citizens from Bavaria subscribed a bill, in order to adopt a law against the CETA or – in case of failing – to organise a referendum. This initiative was based on art. 70 para. 4 of the Bavarian Constitution. The Bavarian Minister of the Interior denied the proposal of the bill and therefore was obligated to recur to the Bavarian Constitutional Court. On 15 February 2017 – i.e. the same day the European Parliament approved the CETA agreement –the Bavarian Constitutional Court decided that the request of the Bavarian citizens does not have the support of art. 70 para. 4 Bavarian Constitution. The Court makes clear that art. 70 para. 4 Bavarian Constitution postulates a transfer of sovereign powers to European Union and this is not the case of signing the CETA. Indeed, according to art. 23 para. 1 Basic Law, the Federation may transfer sovereign powers by a law with the consent of the Bundesrat (“German Senate”). Because the Federation did not transfer sovereign powers to European Union by law pursuant art. 23 para. 1 Basic Law, therefore the prerequisites of art. 70 par. 4 are not fulfilled.

Available Text

Decision of German Constitutional Court: http://www.bverfg.de/e/rs20161013_2bvr136816.html

Decision of Bavarian Constitutional Court:


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