German Constitutional Court case on Lisbon 30 June 2009
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 upheld 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 Article 352 TFEU or the easy treaty amendment paragraph in Article 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 rejected the content in Article 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 Court insisted on national parliamentary participation in all areas where member states would lose their right of veto.
The judges unanimously insisted, 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" and "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 required full participation of national parliaments in the use of the flexibility clause in Article 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.
The most striking element in the judgment was that the Court implied the need for the involvement of national parliaments in all aspects of EU law-making. They referred 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 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.
Different citizen groups initiated the Court cases, 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.
See also Karlsruhe Court case
QUOTES FROM THE VERDICT
Excerpts from the German Constitutional Court judgment 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 Judgment, 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 integration, 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)