24 July 2009
The German Constitutional Court issued a remarkable verdict on 30 June. It was described in the press as the Court’s approval of the ratification of the Lisbon Treaty.
However, 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. Member States are said to be the “masters of the Treaties.” In the Court’s view the EU institutions have no powers of their own. 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 that 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 interpretation 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 EU governments cannot find room for the exercise of 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 would 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” 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 attain 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 ratification to be deposited in Rome 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.
Recognising the democratic deficit
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, including those which have already approved and ratified the Lisbon Treaty.
With this Court judgement 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.
If Germany’s ratification of the Lisbon Treaty is 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.
Such calls may also win time to make people aware of the anti-democratic character of the Lisbon Treaty and ensure that this is not ratified by all EU States before it has been approved by Irish voters in their referendum re-run on 2 October next, and can be put later before British voters in a referendum in the United Kingdom.
The United Kingdom must have a general election before June next year. The Conservative Party, which is likely to win that election, has pledged to withdraw the United Kingdom’s ratification of the Lisbon Treaty on its first day in office if the Treaty has not come into force by then for all 27 EU States. It has then pledged to hold a referendum on it and to recommend a No vote to the British people.
There needs to be a democratic review of the Lisbon Treaty in all EU countries before any such encounter with UK voters.(The author was MEP 1979 – 2008 and served as a member of the Convention on the Future of Europe)
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 integration, to establish, at any rate, suitable national safeguards for the effective exercise of such responsibility.” (Par.239)
“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 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 delegitimise the existing ones, in the constitutional areas of their states.” (Par. 347)