Dilemmas and Limits for Constitutional Courts to Defend Democracy in an Era of Deep Globalisation

Globalization has led to growing perceptions of inequality and reduced democratic margins. The constitutional complaint before the German Federal Constitutional Court (FCC) against Germany’s consent in the Council to the preliminary enactment of the CETA between the EU and Canada is an example for the attempt to defend democratic margins against encompassing free-trade regimes through reference to constitutional requirements.
Concerns relate to the regulatory competences of the CETA committee, investor arbitration and an ultra vires delegation of competences. The FCC found the concerns arguable but rejected an interim injunction against the German consent due to concerns about reliability in external relations. The paper analyses the dilemma between international cooperation and constitutional requirements at the example of the reduced benchmark of constitutional identity plus X and the resulting limitations for the FCC to address democratic concerns by means of constitutional review.