Article 79(3): The Eternity Clause Protecting Fundamental Principles
Article 79(3) of the Grundgesetz, commonly known as the eternity clause (Ewigkeitsklausel), prohibits amendments to the Basic Law that would affect the federal structure of Germany, the participation of the Länder in legislation, or the fundamental principles laid down in Articles 1 and 20. This provision places certain constitutional principles beyond the reach of even a supermajority of the legislature, creating a hierarchy of constitutional norms within the German legal order. The eternity clause is one of the most distinctive features of the Grundgesetz and has profound implications for German constitutional identity and the relationship between German law and European integration.
The Text of Article 79(3)
Article 79(3) provides: “Amendments to this Basic Law affecting the division of the Federation into Länder, their participation in principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.” Article 1 enshrines human dignity as inviolable and obliges all state authority to respect and protect it. Article 20 establishes Germany as a democratic, federal, and social Rechtsstaat, with the people as the source of state authority and with separation of powers and a right to resist attempts to abolish the constitutional order. The prohibition covers amendments that affect these principles in their essential content, not merely textual amendments that leave the principles intact.
The Purpose of the Eternity Clause
The eternity clause reflects the drafters’ determination to prevent the legal subversion of the constitution from within. The Weimar Constitution was not formally repealed by the Nazi regime; rather, the Enabling Act of 1933 was passed constitutionally under Article 76 of the Weimar Constitution, which permitted amendments by a two-thirds parliamentary majority. Once enacted, the Enabling Act allowed the government to enact statutes without parliamentary participation, effectively rendering the remainder of the Weimar Constitution meaningless. The eternity clause makes such a “constitutional suicide” legally impossible by removing core constitutional principles from the amendment process, ensuring that even a supermajority of the legislature cannot dismantle the constitutional order.
Scope and Interpretation
The Federal Constitutional Court has given broad scope to the eternity clause. The protection extends not only to the express provisions of Articles 1 and 20 but also to the essential content of those principles, including the substance of fundamental rights derived from human dignity. The Court held in the Solange I case (1974) that certain fundamental rights form part of German constitutional identity that cannot be compromised even by European integration. The Lisbon Treaty judgment (2009) confirmed that the eternity clause limits the transfer of sovereign powers to the European Union by protecting the democratic principle, the social state principle, and the fundamental rights core of the Grundgesetz. The Court has indicated that the protection extends to the essential content of all fundamental rights, not merely Article 1, creating a broad zone of constitutional identity.
The Eternity Clause and European Integration
The relationship between the eternity clause and European integration has been central to German constitutional jurisprudence. The Maastricht judgment (1993) established that the Grundgesetz permits participation in European integration but that the eternity clause sets limits: the essential content of democratic self-governance, fundamental rights, and the social state cannot be surrendered. The identity review (Identitätskontrolle) enables the Court to examine whether EU acts violate German constitutional identity. This review is distinct from ultra vires review, which examines whether EU institutions act within their competences. The PSPP judgment (2020) applied ultra vires review for the first time, finding that the European Central Bank had exceeded its mandate, while reaffirming that identity review remains available.
Practical Significance
The eternity clause has practical significance beyond theoretical constitutional discourse. It functions as a judicial standard for reviewing constitutional amendments and, more significantly, for reviewing the compatibility of European integration with German constitutional identity. Any proposed constitutional amendment that touches on the principles of Articles 1 or 20 must be scrutinised for compatibility with the eternity clause. The clause also influences legislative drafting, as legislators must ensure that new statutes do not indirectly undermine protected constitutional principles. The Federal Constitutional Court’s identity review serves as a backstop against any erosion of constitutional fundamentals through European integration, ensuring that the core values of German constitutionalism remain inviolable.
Comparative Constitutional Law
The eternity clause is a rare but not unique feature in comparative perspective. The Indian Constitution contains a basic structure doctrine developed by the Supreme Court in the Kesavananda Bharati case (1973), which limits constitutional amendments that alter the constitution’s basic structure without requiring express textual entrenchment. Article 89 of the French Constitution prohibits amendment of the republican form of government. Article 288 of the Brazilian Constitution contains numerous unamendable provisions protecting fundamental rights, the separation of powers, and the federal structure. The German eternity clause has been particularly influential in European constitutional discourse, especially in the context of the constitutional limits on European integration and the protection of democratic self-determination within the European Union.