July 7, 2009
German Constitutional Court, ratification of Lisbon Treaty
The German Constitutional Court cleared the way for German ratification of the Treaty of Lisbon, subject to legislation being adopted requiring parliamentary approval of EU decisions which affect core German state competences. The government plans to present the necessary bill for a first reading in August and a second in September, with a view to its adoption before the Irish vote. However, the Bavarian Christian Democrat CSU are asking for the legislation to be delayed until after the German elections on 27 September. The drafting exercise is difficult, both legally and politically, and the Bundesrat needs careful handling as there has always been considerable sensitivity over the loss of Länder competences to the EU.
We now have to wait for the second Irish referendum, to be held in late September/early October and which is expected to have a favourable result. The latest news from Warsaw suggests that President Lech Kaczynski will sign the necessary instrument if the Irish vote ‘Yes’.
That leaves the arch Eurosceptic Vaclav Klaus, who only recently repeated that the arrangement with Ireland should be approved by the Czech parliament because it changes the character of the Lisbon treaty. Prime Minister Jan Fischer disagrees and said that it is an international treaty of a government type, and therefore need not be ratified by parliament. It is hard to believe that one man will be allowed to kill the Lisbon Treaty.
The Constitutional Court decided that the “Act Approving the Treaty of Lisbon” is compatible with the German Basic Law, but the “Act Extending and Strengthening the Rights of the Bundestag and the
Bundesrat in European Union Matters” infringes the Basic Law insofar as the two houses of parliament have not been accorded sufficient rights of participation in European law making and treaty amendment procedures.
The removal of the obstacle preventing German ratification of the new treaty is welcome. It is too early to anticipate the effects of other aspects of the Karlsruhe court’s judgment on European integration. The court is jealous of state sovereignty (as would be expected of a constitutional court), and also expresses concern about the Union’s democratic deficit. However, it makes clear that, the Basic Law wants European integration and an international peaceful order.
The court considers that the only real basis for democracy in the EU is the national parliaments.
In essence, the judgment is based on the structural problem of the EU. The extent of the Union’s freedom of action has steadily and considerably increased, not least by the Treaty of Lisbon, so that in some policy fields the EU corresponds to a federal state: in contrast, the internal decision-making procedures remain predominantly those of an international organization.
EU citizens remain the decisive holders of public authority, including Union authority. The primary responsibility for integration is in the hands of the national constitutional bodies which act on behalf of the citizens. With increasing competences and further independence of the institutions of the Union, safeguards that keep up with this development are necessary.
Further expansion of the competences of the European Parliament can reduce, but not completely fill, the gap between the extent of the decision-making power of the Union’s institutions and the citizens’ democratic power of action in the Member States.
The authorisation to transfer sovereign powers to the EU is, however, granted conditionally on the sovereign statehood of the Member States being respected and their retaining sufficient room for the political formation of the economic, cultural and social circumstances of life.
This concerns in particular the administration of criminal law, the civil and the military monopoly on the use of force, fundamental fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy, and important decisions on cultural issues such as the school and education system, provisions governing the media, and dealing with religious communities.
The Basic Law does not allow the transfer of sovereign powers in such a way that their exercise can independently establish other competences for the EU: there cannot be a transfer of competence allowing the EU to decide on its own competence.
With the present status of integration, the EU does not yet, even upon the entry into force of the Treaty of Lisbon, attain a shape that corresponds to the level of legitimization of a democracy constituted as a state. It is not a federal state but remains an association of sovereign states.
The European Parliament is not a body of representation of a sovereign European people but a supranational body of representation of the peoples of the Member States.
Some practical effects are:
• The German government cannot agree, without the prior approval of the Bundestag and Bundesrat, the application of the “passerelle” clause under the Lisbon Treaty – Article 48.7 – of the “Treaty on European Union” (TEU), making possible the voting transition from unanimity to qualified majority, or the transition from the special to the ordinary legislative procedure.
• This also applies in the case of the special bridging clause – Article 81.3 (2) – of the “Treaty on the Functioning of the European Union” (TFEU) being used.
• The flexibility clause (Article 352 of the TEU, which allows the Union to acquire powers to attain its objectives where the treaties do not already provide them, cannot be used without the approval of the Bundestag and the Bundesrat.
• The competences that have been newly established or deepened by the Treaty of Lisbon in the areas of judicial cooperation in criminal and civil matters, external trade relations, common defence and with regard to social concerns, must be strictly justified and exercised by the Union.
• Justice is a mixed Land and Bund (Federation) competence, and part of the Court’s concern is that the new ‘third pillar’ competences inpinge upon the competences of the Länder. The Bund cannot constitutionally surrender or diminish the competences of the Länder.
• Extending the list of particularly serious crimes with a
cross-border dimension “on the basis of developments in crime” (83.1(3) TEU) is subject to the requirement of the enactment of
a specific statute, as required by the Basic Law.
• In the area of judicial cooperation in criminal matters, particular requirements must additionally be placed on the provisions which accord a Member State special rights in the legislative procedure (Articles 82.3 and 83.3 TFEU) – the so-called emergency brake procedure. The German government can only act with the appropriate parliamentary approval.
• The mandatory requirement of parliamentary approval for the deployment of armed forces abroad will continue to exist.
In a nutshell, the Constitutional Court is saying that European integration may not result in the system of democratic rule in Germany being undermined.
The court is jealous of state sovereignty, as would be expected of a constitutional court: a similar approach in Ireland led to the political, if not legal, need for a referendum on the Lisbon Treaty.
The court sees the EU, not as a federal state, but an association of sovereign states. Maybe Jacques Delors’ “federation of nation states” is a more appropriate depiction. However, while the Member States are sovereign, the court upholds their right to transfer sovereignty to the Union in designated areas, subject to complying with the relevant national constitutional provisions.
The court expresses concern about the EU’s democratic deficit. It regards national parliaments as the only real basis for democracy in the Union. The European Parliament does not represent a sovereign European people, but is a supranational body of representation of the peoples of the Member States.
These legal views are not inconsistent with further European integration and are not suggesting a more intergovernmental community. However, they can easily be distorted. The hydra of nationalism and parochialism is not dead in Europe.
The court rightly draws attention to the democratic deficit and underlines the important role of national parliaments. The Lisbon Treaty increases their involvement, but a way must be found further to increase their involvement, without the decision-making process becoming too cumbersome. The trouble is that most Member State parliaments have shown little interest in the EU in general and the European Parliament, in particular. The Danish parliament monitors the process and indeed controls the way Danish ministers vote in Council. This would be dangerous if extended Union-wide but further integration is only possible if a way is found to connect the EU with its citizens. National parliaments should be a key to this happening, although the public opinions of parliaments in general, and political parties in particular, are worryingly low.
To what extent will the judgment limit the application of the Lisbon Treaty? The answer will be influenced by the wording of the legislation to be enacted by the German parliament to implement the court’s judgment; the procedure laid down for obtaining parliamentary approval of EU decisions which affect core German state competences; and whether such approval must always be by the plenary sessions of both the Bundestag and the Bundesrat. The extent of the Merkel cgovernment’s influence over parliament will be relevant.
The wording is already causing problems. The CSU (the Bavarian counterpart of the CDU) is pushing for parliament to have far more influence than CDU MPs want. CSU MPs appear to seek government commitment to gaining Bundestag consent in all Europe policy decisions. German politicians are looking for inspiration to the Austrian and Danish systems of parliamentary scrutiny.
The judgment and resulting legislation may also encourage parliaments in other Member States to demand from their governments a similar right of approval.
The applications of the ‘passerelle’ clause under the Lisbon Treaty, making possible the voting transition from unanimity to qualified majority, and the special bridging clause, already give to national parliaments a right of veto. The court judgment does not, therefore, seem to have any relevance.
The flexibility clause is unlikely to be invoked and this extra brake is not likely to have any effect.
It is unclear whether the requirement of Bundesrat approval, before the list of particularly serious crimes with a cross-border dimension can be extended, will have any material effect.
The effect of the restrictions in the area of judicial cooperation in criminal matters is difficult to assess. The ‘emergency brake procedure’ does not appear to raise any serious concern. But the relevant treaty article also addresses the authorisation to proceed with enhanced cooperation. The Council has to agree unanimously that nine or more Member States can act together. Germany will require parliamentary approval before agreeing.
It needs to be emphasized that the German Constitutional Court reconfirms the Basic Law’s support for European integration and the right of the country to transfer sovereignty to the European Union. Its concern is that these transfers are democratically exercised.Author : Stanley Crossick