German Constitutional Court “threatens future steps toward European integration”
4 August, 2009
Perhaps the juggernaut of EU integration (and the centralisation of law-making authority) has had some sand thrown into its machinery. From what might be thought a surprising source as well.
Germany’s constitutional court ruled on 30 June that, while the proposed Lisbon Treaty is compatible with the country’s constitution, the German parliament should have the final say if the EU wanted to extend the competences beyond what is contained in the treaty. In addition, the judges ruled that Germany’s highest court should have final say on interpretation of EU law, allowing it to overturn judgements by the European Court of Justice (ECJ). The 147 page-long ruling suspended the ratification process of the treaty until the new provisions requested by the court come into force.
Der Spiegel has some interesting background and comments : “In essence, the court ruled that by passing the so-called ‘accompanying law’ to the Lisbon Treaty, which determines the rights of German parliament to participate in European legislation, the representatives had relinquished significant monitoring rights to Brussels. According to the judges, this unconstitutionally subjects the people that they represent to the whims of a bureaucracy that lacks sufficient democratic legitimacy.” Ouch.
A comment piece in Die Zeit newspaper notes that the court ruling was a “clip around the ear” for the German parliament for failing to be more active, rather than a criticism of the Lisbon Treaty. The Frankfurter Allgemeine Zeitung was more robust: “This is the end of European integration as we know it – Germany will support the Lisbon Treaty but only under strict conditions. And anyone who wants to found a European state must now ask for the permission of the German people.”
On 15 July, Jose Manuel Barroso, the president of the European Commission, admitted that the judgement raises “very important and sensitive issues in terms of the competence of the European Union and other competences, namely on the understanding of the principle of subsidiarity.” The court effectively ruled that it would uphold that principle (that decisions should be taken at the most local level that is practicable) to make sure decisions taken at EU level could not have better been taken at nation level.
A law on how the German parliament should be involved in EU decision making when the Lisbon Treaty is in force had already been drawn up by the German government in anticipation of the treaty coming into force. But the constitutional court said the draft law was too weak, mentioning in particular the “passerelle” clause whereby EU leaders, when acting unanimously, can decide to move an area from unanimity to qualified majority voting. Now the parliament is set to draw up a revised law that would ensure that it would have to vote on any such changes through the “passerelle” clause. The court called on the German parliament to have “responsibility for integration”, with the assembly now to have a say over every step that goes beyond the Lisbon Treaty.
The revised legislation needs to be approved by the German upper chamber, the Bundesrat, possibly on 18 September. Constitutional court judges could then decide if their requirements have been met. Also, a new legal complaint could be initiated by the MPs who made the first complaint, if they believe that the (revised) implementation of the Lisbon treaty is still unsatisfactory, having regard to German constitutional provisions.
So a bit of good news for a change on the Subsidiarity front. But frankly it’s hard to reconcile what the German judges seem to be trying to do with the degree of sovereignty surrender that Germany has presumably already signed up to in the various European treaties. It will be very interesting to see how this plays out.