German Constitutional Court case on Lisbon 30 June 2009
- Lisbon Treaty (Photo: www.svrez.gov.si/.../cns/news/article/2028/1828)
30 June 2009 the German Constitutional Court in Karlsruhe - "Bundesverfassungsgericht" - published a radical verdict on the relations between the national parliaments and European integration. The German ratification of the Lisbon Treaty was approved in principle but upheald in practise.
The German national Parliament was asked to pass national legislation to safeguard the influence of the Bundestag and Bundesrat on the implementation of the Lisbon Treaty before Germany could legally ratify the new Treaty.
The Court would not accept that the German Government on its own may use the flexibility clause in Art. 352 TFEU or the easy treaty amendment paragraph in Art. 48.6 TEU to widen EU cooperation nor the "passarelles" foreseen for the abolition of unanimity voting in the future.
For these constitutional changes the German Court insist on a positive decision in the German Parliament each time. It also insist on national parliamentary participation in the many new areas where the Lisbon Treaty introduce majority voting.
The Court does not accept more powers to the European Parliament as enough compensation to the voters to overcome the democratic deficit when powers are moved to Brussels. The Court also insist on national sovereignty and a national "living democracy" in key political areas as citizenship and fundamental rights, social and financial policy, legislation in criminal matters, civil and family law, relations to the churches and defence.
The Court rejects core constitutional elements in the Lisbon Treaty.
The primacy of EU law will only be accepted as long as the European institutions respect their delegated competences. German citizens and companies are invited to go to the German Constitutional Court if they find that the EU has legislated - or judged - outside the areas explicitly delegated to the EU.
The Court implicitly rejects the content in Art. 344 TFEU giving the monopoly to judge on interpretations on EU law to the European Court of Justice in Luxembourg and Declaration no 17 reminding on the primacy of EU law.
The German Parliament passed the required legislation in September 2009 to allow the re-elected German President Köhler to send the letter of ratification to the Italian President Napolitano who stores the EU treaties.
The Court cases were intiatated by different citizen groups, the left party "Die Linke" and German MP Peter Gauweiler from the Bavarian CSU party. The CSU party has announced far reaching reforms on the relationship between the German Parliaments and the EU.
The Court offered costs to be partly paid by the state. The verdict was heavily criticised from the former German foreign minister Joschka Fischer and many others.
Here you can find a comment published in euobserver.com on the verdict and a lot of quotes from the official English translation from the Court.
See also Karsruhe Court case
German Constitutional Court implies most Lisbon ratifications are unlawful
by Jens-Peter
Bonde
(MEP 1979 - 2008; member of the Convention on the
Future of Europe)
The German Constitutional Court issued a
remarkable verdict on 30 June in Karlsruhe. Leading German CDU
politicians knew the result before it was published. It was described
in the press as the Court's approval of the ratification of the Lisbon
Treaty.
This was mere spin. A careful reading of the
judgement shows that it is a fundamental rejection of the core
constitutional content of the Treaty.
The Court judgement modifies the most important principle of the primacy of European law. The member states are stated to be the "masters of the Treaties". In the Court's view the EU institutions have no powers on their own account. They can only administer delegated competences in prescribed areas.
European law is stated to be ultimately based on and limited by the
accession law of each member state.
The German Court implicitly invites any citizen,
political party or business firm in Germany to take court cases before
the German Constitutional Court if they find that a piece of proposed
EU law is outside those delegated competences. Then it is the German
Court will decide - not the EU Court.
This is a rejection of Art. 344 of the Treaty
on the Functioning of the European Union, which provides that member states undertake not to submit a dispute concerning the
intepretation or application of the Treaties to any method of
settlement other than the European Court of
Justice.
The Karlsruhe Court also insists that there must be important areas of law-making and decision-taking left to the EU member states. This is an invitation to politicians everywhere to ask their governments what competences are left with the member states after the adoption of the Lisbon Treaty.
I have offered a bottle of top class wine to anyone who can give me just one example of a national law which cannot be touched in some way by the Lisbon Treaty. Legal specialists have tried to find examples; yet they cannot!
If the EU governments cannot find room for the exercise of a meaningful national parliamentary democracy within the ambit of the EU, then the Lisbon Treaty is unconstitutional, according to the German Court.
The Court does not accept that the European Parliament is a body which can give adequate democratic legitimacy to European Union law. The Court also sets limits to the importance of the new "additional" Union citizenship and states that this can only be supplementary to national citizenship.
The Court insists on national parliamentary
participation in all areas where member states will lose their
right of veto.
The judges unanimously insist, by 8 votes to nil, on prior approval by the German Parliament - and implicitly by other National Parliaments - for the use of the so-called "bridge articles" og "passerelle clauses" whereby Government Ministers on the Council of Ministers or the European Council can alter EU law-making from unanimity to qualified majority voting.
The judges also require full participation of National Parliaments in the use of the flexibility clause in Art. 352 TFEU, which permits the EU to take action and adopt measures to obtain one of the EU's objectives even if the Treaties have not provided the necessary powers.
Finally, the Court forbids the German President
from signing the Treaty so as to enable Germany's instrument of
rartication to be deposited in Rome unless and until the German
Parliament has adopted a law which would safeguard the
involvement of the German Bundestag and Bundesrat in future EU
decision-making.
The most striking element in the judgement
is that the Court implies the need for the involvement of
National Parliaments in all aspects of EU law-making. They refer
to democracy as being a principle common to all the EU member states.
The involvement of National Parliaments in EU law-making is
therefore a necessity. If not, the principle of democracy will
have been fundamentally breached.
The Karlsruhe Court effectively finds that the Lisbon Treaty would increase the EU's widely acknowledged democratic deficit if its ratification is not linked to the adoption of internal procedures at member state level such as to safeguard the involvement of the National Parliaments and voters in each member state.
The verdict applies only to Germany of course. But it has significant implications for all member states. With this Court case in hand political parties and groups of citizens in each member state are implicitly invited to go to their National Parliaments and insist on similar guarantees being given in order to ensure the involvement of elected representatives and voters in EU decision-making in each one.
When Germany's ratification of the Lisbon Treaty was found to be illegal and in contravention of basic democratic principles in the absence of such parliamentary controls, should not the same principle apply in all other member states that claim to be democracies?
The Karlsruhe judgement should inspire people to call for similar constitutional and parliamentary challenges in other EU countries. This may establish strengthened procedures for national parliamentary control and safeguard areas where national parliamentary democracies can decide things on their own without interference from, for example, the EU Court of Justice.
Excerpts from the German Constitutional Court judgement in the English version published by the Court, 30 June 2009.
"European unification on the basis of a union of sovereign states under the Treaties may not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life." (Headnotes to the Judgement, Par. 3)
"It is therefore constitutionally required not to agree dynamic treaty provisions with a blanket character or if they can still be interpreted in a manner that respects national responsibility for integation, to establish, at any rate, suitable national safeguards for the effective exercise of such responsibility." (Par.239)
"... retain sufficient space for the political formation of the economic, cultural and social circumstances of life. This applies in particular to areas which shape the citizens' circumstances of life, in particular the private space of their own responsibility and of political and social security, which is protected by the fundamental rights, and to political decisions that particularly depend on previous understanding as regards culture, history and language and which unfold in discourses in the space of a political public that is organised by party politics and Parliament. Essential areas of democratic formative action comprise, inter alia, citizenship. the civil and military monopoly on the use of force, revenue and expenditure including external financing and all elements of encroachment that are decisive for the realisation of fundamental rights, above all as regards intensive encroachments on fundamental rights such as the deprivation of liberty in the administration of criminal law or the placement in an institution. These important areas also include cultural issues such as the disposition of language, the shaping of circumstances concerning the family and education, the ordering of the freedom of opinion, of the press and of association and the dealing with the profession of faith or ideology." (Par. 249)
"Consequently, the Treaty of Lisbon does not alter the fact that the Bundestag as the body of representation of the German people is the focal point of an interweaved democratic system." (Par. 277)
"the European Parliament is not a body of representation of a sovereign European people." (Par.280)
"The deficit of European public authority that exists when measured against requirements on democracy in states cannot be compensated by other provisions of the Treaty of Lisbon and to that extent, it cannot be justified." (Par.289)
"As regards the legal situation according to the Treaty of Lisbon, this consideration confirms that without democratically originating in the Member States, the action of the European Union lacks a sufficient basis of legitimisation." (Par.297)
"Finally, the Treaty of Lisbon does not vest the European Union with provisions that provide the European union of integration (Integrationsverband) with the competence to decide its own competence (Kompetenz-Kompetenz)." (Par.322)
"With Declaration No.17 Concerning Primacy annexed to the Treaty of Lisbon, the Federal Republic of Germany does not recognise an absolute primacy of application of Union law, which would be constitutionally objectionable, but merely confirms the legal situation as it has been interpreted by the Federal Constitutional Court. . ." (Par. 331)
"After the realisation of the principle of the sovereignty of the people in Europe, only the peoples of the Member States can dispose of their respective constituent powers and of the sovereignty of the state. Without the expressly declared will of the peoples, the elected bodies are not competent to create a new subject of legitimisation, or to deligitimise the existing ones, in the constitutional areas of their states." (Par. 347)
