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Nosemonkey's EUtopia

In search of a European identity

German Constitutional Court Lisbon Treaty ruling

Another small hurdle for the much-beleaguered treaty to overcome:

the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters (Gesetz über die Ausweitung und Stärkung der Rechte des Bundestages und des Bundesrates in Angelegenheiten der Europäischen Union) infringes Article 38.1 in conjunction with Article 23.1 of the Basic Law (Grundgesetz – GG) insofar as the Bundestag and the Bundesrat have not been accorded sufficient rights of participation in European lawmaking procedures and treaty amendment procedures. The Federal Republic of Germany’s instrument of ratification of the Treaty of Lisbon may not be deposited as long as the constitutionally required legal elaboration of the parliamentary rights of participation has not entered into force.

And so the ratification of the Lisbon Treaty is to be yet further delayed while Germany rejigs a few bits and pieces of its own constitution to accommodate it. Which, depending on how long Germany takes to sort this out, could mean that the treaty is delayed long enough for there to be a Conservative government in the UK before Lisbon has been fully ratified, which would mean a UK referendum, which would mean Lisbon’s rejection by Britain and yet another crisis for the EU. Fun fun fun.

There’s lots more in this genuinely fascinating ruling that is pretty much guaranteed to be seized upon by those of an anti-EU persuasion – even though the real issue here is as much Germany’s strict constitution as any problems with the expansion of EU powers. The ruling also helps clarify a number of issues, as well as point to more issues of the EU’s structure and identity that really need to be clarified by the EU itself.

First up, the EU’s crisis of identity and purpose – as I’ve noted many times, the EU itself doesn’t know what it is for, so little wonder it’s got a rather confused structure:

The structural problem of the European Union is at the centre of the review of constitutionality. The extent of the Union’s freedom of action has steadily and considerably increased, not least by the Treaty of Lisbon, so that meanwhile in some fields of policy, the European Union has a shape that corresponds to that of a federal state, i.e. is analogous to that of a state. In contrast, the internal decision-making and appointment procedures remain predominantly committed to the pattern of an international organisation, i.e. are analogous to international law; as before, the structure of the European Union essentially follows the principle of the equality of states.

Note, dear eurosceptic friends, that “analogous to a state” does not mean “is a state” – and note also that “a shape that corresponds to that of a federal state” does also not mean “is a state” (and also that federal states can take many forms – their defining characteristic being the importance placed on devolved, state/regional levels of governance over that of a central authority).

Indeed, this ruling seems to utterly preclude the creation of a European superstate – at least, not without a fundamental change to the German constitution, ratified by referendum (that’s how I read this, anyway):

As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority. In Germany, accession to a European federal state would require the creation of a new constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law.

…The peoples of the Member States are the holders of the constituent power. The Basic Law does not permit the special bodies of the legislative, executive and judicial power to dispose of the essential elements of the constitution.

…The authorisation to transfer sovereign powers to the European Union pursuant to Article 23.1 GG is, however, granted under the condition that the sovereign statehood of a constitutional state is maintained on the basis of a responsible integration programme according to the principle of conferral and respecting the Member States’ constitutional identity, and that at the same time the Federal Republic of Germany does not lose its ability to politically and socially shape the living conditions on its own responsibility.

That, to me, pretty much categorically rules out any EU superstate – while allowing for further integration, up to an indeterminate level (yet to be defined, but before the stage at which Germany’s ability to “politically and socially shape the living conditions” of its people is lost) at which a popular vote and alteration of the German Constitution would become necessary. Later, the EU’s current nature is more clearly defined:

With the present status of integration, the European Union does, even upon the entry into force of the Treaty of Lisbon, not yet attain a shape that corresponds to the level of legitimisation of a democracy constituted as a state. It is not a federal state but remains an association of sovereign states to which the principle of conferral applies…

With the entry into force of the Treaty of Lisbon, the Federal Republic of Germany will remain a sovereign state. In particular, the substance of German state authority is protected.

There we have it – fairly categorical, that. And if anti-EU types are happy to use German politicians to claim that 84% of laws stem from the EU, I think it’s only fair for those of us of a less vehemently anti-EU persuasion be allowed to quote these German judges repeatedly when countering claims that the EU is becoming a superstate.

Moving on, the European Parliament also comes in for some stick, largely for still being ineffective, under-developed, and uninfluential – though this is seen as a good thing, as too powerful a European Parliament, runs the logic, could claim greater democratic legitimacy within the EU decision-making process than the governments of the member states working together behind the scenes via the Council and Commission, and thus reduce their freedom of action (the EU’s “democratic deficit”, in other words, is actually preserving the sovereignty of the member states…):

Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction. Measured against requirements placed on democracy in states, its election does not take due account of equality, and it is not competent to take authoritative decisions on political direction in the context of the supranational balancing of interest between the states. It therefore cannot support a parliamentary government and organise itself with regard to party politics in the system of government and opposition in such a way that a decision on political direction taken by the European electorate could have a politically decisive effect. Due to this structural democratic deficit, which cannot be resolved in a Staatenverbund, further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.

And, just to underline yet further how an EU superstate is not on the cards:

The European Union must comply with democratic principles as regards its nature and extent and also as regards its own organisational and procedural elaboration (Article 23.1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law). This means firstly that European integration may not result in the system of democratic rule in Germany being undermined. This does not mean that a number of sovereign powers which can be determined from the outset or specific types of sovereign powers must remain in the hands of the state. European unification on the basis of a union of sovereign states under the Treaties may, however, 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. 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. To the extent
that in these areas, which are of particular importance for democracy, a transfer of sovereign powers is permitted at all, a narrow interpretation is required. 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, the provisions governing the media, and dealing with religious communities.

Oh, and we’ve also got a categorical rejection of that myth that the Lisbon Treaty has the potential to become a self-amending enabling act – for this would be against German constitutional law:

The Basic Law does not grant the German state bodies powers to transfer sovereign powers in such a way that their exercise can independently establish other competences for the European Union. It prohibits the transfer of competence to decide on its own competence (Kompetenz-Kompetenz). The act approving a treaty amending a European Treaty and the national accompanying laws must therefore be such that European integration continues to take place according to the principle of conferral without the possibility for the European Union of taking possession of Kompetenz-Kompetenz or to violate the Member States’ constitutional identity.

There’s lots more of interest there – though precise interpretations of the significance of many of the details are a tad tricky for me to provide with my, *ahem*, less than perfect knowledge of German constitutional law. Nonetheless, it’s a bit of EU geek heaven – and, I’m sure you’ll agree, a lot of those definitions of what the EU’s competences are and should be (as well as the implicit restrictions made on certain aspects of future European integration) are likely to prove invaluable in the years to come as the EU continues to try and work out its purpose and direction.

Because, lest we forget, Lisbon actually is really little more than the tidying-up exercise that it has been claimed as. Yes, it introduces a few new aspects that some may see as worrying – but it still hasn’t solved the fundamental problems of EU governance and the relationships between the member states that have arisen since the expansion to 25 (now 27 – and soon likely to be 29). Almost as soon as Lisbon is ratified, work will have to begin on its successor – and these rulings by the German Constituional Court will, with any luck, provide useful guidelines for the next batch of EU reformers.

44 Comments

  1. Interesting analysis.

    One point on the timeframe for ratification in Germany: the final sessions where such changes to the accompanying law could be passed are scheduled for 18 september (in the Bundesrat). So, if everything works as planned then Germany will also have ratified the Treaty by October.

  2. “Because, lest we forget, Lisbon actually is really little more than the tidying-up exercise that it has been claimed as.”

    So why was the previous version, (almost exactly the same thing but a bit clearer), described as a constitution?

    “I think it’s only fair for those of us of a less vehemently anti-EU persuasion be allowed to quote these German judges repeatedly when countering claims that the EU is becoming a superstate.”

    a doesn’t follow from b here. That Lisbon doesn’t put a superstate in place is of no use as an argument that we are not traveling towards one, given that this, as with every other treaty so far, gives the EU yet more power. In fact to quote from the above:

    “The extent of the Union’s freedom of action has steadily and considerably increased, not least by the Treaty of Lisbon”

    No sign of further integration there is there? They did miss a few key adjectives though, such as; undemocratically, stealthily, dishonestly and to use a key phrase so far as the UK is concerned; by lying through their bastard teeth.

    “Oh, and we’ve also got a categorical rejection of that myth that the Lisbon Treaty has the potential to become a self-amending enabling act – for this would be against German constitutional law:”

    Then thank god for the German constitution because, given the behavior of our glorious leaders, I have little doubt that otherwise it would have morphed into the myth in short order. I think we can look forward to several years of German constitutional court rulings as the EU tries to push the boundaries.

    One thing that has genuinely puzzled me for some time is why the Germans are, on average, so pro-EU. We may moan that we pay a great deal more than we receive in benefits, (I know it’s hard to calculate but it does appear that the UK gets pisspoor value for money), but Germany pays through the nose. What benefit do the Germans feel is of such value that the price, in cash and loss of sovereignty, is justified?

    One last point from your verbose commenter:

    “Indeed, this ruling seems to utterly preclude the creation of a European superstate – at least, not without a fundamental change to the German constitution, ratified by referendum (that’s how I read this, anyway):”

    This is hardly an insuperable barrier. We have after all seen in Ireland what happens if the public doesn’t vote the “right” way.

  3. Falco, did you actually read any of the extracts above? In particular:

    “In Germany, accession to a European federal state would require the creation of a new constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law… …The peoples of the Member States are the holders of the constituent power. The Basic Law does not permit the special bodies of the legislative, executive and judicial power to dispose of the essential elements of the constitution.”

    In other words, Germany cannot join an EU superstate without the express permission of the German people – the German state/government lacks the right to give away control of fundamental areas of sovereignty (as defined further down the text). Further integration is one thing – a superstate is quite another; this ruling effectively rules out the formation of a superstate *without the will of the people*. And if something can be demonstrated as being in the best interests of the people and the people want it, why should they be prevented from having it?

    Yes, it may be unsavoury to ask people to vote again – and I’ve always argued that Lisbon should have been scrapped as soon as the Irish no came through – but if the no vote was based on a misunderstanding (in the case of the Irish “no”, it was based on *several* misunderstandings, mostly brought about by deliberate distortion and misinterpretation by various special interest groups), why shouldn’t the people be given the chance to think again?

    As for your point about German enthusiasm for the EU – yes, it can be puzzling. Until you remember that Germany has the strongest and largest economy in Europe, that its primary export markets are European, and that it is reliant largely on other EU countries for the vast majority of its imports (as it is far from being self-sufficient). It is therefore very much in Germany’s interest to bolster the European economy as much as possible to ensure that its external markets remain healthy, and the EU is a handy mechanism for achieving this.

  4. Nosemonkey, did you actually read my comment?

    As I said above, I’m heartened by the fact that Germany poses constituional barriers to further integration by stealth. The gist was that I believe this to be valuable because I have no faith what so ever that in the absence of such a restriction the superstate project would not continue in the least open way possible. If it is the will of the people in each country to go for further integration or even full federalisation then they have every right to go ahead. However, by the same token, those countries and peoples who want less integration should be equally respected, (not exactly a guiding principle of the project).

    “why shouldn’t the people be given the chance to think again?”

    By all means give them a chance to think again but not almost immediately afterwards on substantially the same thing. This second referendum is what it appears to be; a refusal to accept an answer that wasn’t what they wanted.

    Re Germany and the EU: Why do they believe that the EU is the best way of going about this? Trade does not rely on us all being under the same jurisdiction, indeed it can be enhanced by being under differing systems, (thereby tending to produce different surplus’ in different areas). You may well be correct on their motovation but I do think there must be more to it, (damned if I know what though).

  5. Pingback: europaeum | halt europa und so .. » Kleine Blogschau zur Entscheidung des BVerfG über den Lissaboner Vertrag

  6. You got it wrong Nosemonkey. The German Constitutional Court did indeed rule that Article 352 TFEU (the flexibility clause) is contrary to the German basic law in that it allows expansion of EU powers in unforeseeable ways. this is what they mean by ‘meets constitutional objections’ (see below). The German court therefore agree Lisbon is a self-amending treaty and are demanding changes to the German national laws such that votes in Bundestag and Bundesrat are mandatory before the German state representative is allowed vote in the EU Council using the flexibility clause.

    ——————– German court ruling ——
    Article 352 TFEU not only establishes a competence of action for the European Union but at the same time relaxes the principle of conferral. Because action by the European Union in fields set out in the Treaties is intended to be possible if the Treaties have not provided the specific competence necessary but action by the European Union should prove necessary to attain the objectives set out in the Treaties (Article 352.1 TFEU).

    According to the current legal situation, Article 308 ECT appeared as a “lacuna-filling competence”, which made a “further development, inherent in the Treaties” of European Union law “below the formal amendment of the Treaties” possible. The amendments brought about by the Treaty of Lisbon must lead to a new assessment of the provision. Article 352 TFEU is no longer restricted to the attainment of objectives in the context of the Common Market but makes reference to “the policies defined in the Treaties” (Article 352.1 TFEU) with the exception of the common foreign and security policy (Article 352.4 TFEU). The provision can thus serve to CREATE A COMPETENCE WHICH MAKES ACTION ON THE EUROPEAN LEVEL POSSIBLE IN ALMOST THE ENTIRE AREA OF APPLICATION OF THE PRIMARY LAW.

    This extension of the area of application is partly compensated by procedural safeguards. The use of the flexibility clause continues to require a unanimous decision by the Council on a proposal from the Commission which now requires the consent of the European Parliament (Article 352.1 sentence 1 TFEU). Apart from this, the Commission is obliged to inform national Parliaments about corresponding lawmaking proposals in the context of the procedure for monitoring adherence to the subsidiarity principle (Article 352.2 TFEU). Moreover, such a lawmaking proposal shall not entail harmonisation of Member States’ laws or regulations in cases where the Treaties otherwise exclude such harmonisation (Article 352.3 TFEU). The approval by the Member States in accordance with their respective constitutional requirements IS NOT A REQUIREMENT FOR THE DECISION ENTERING INTO FORCE.

    As regards the ban (in the German constitution) on transferring blanket empowerments or on transferring Kompetenz-Kompetenz, the provision MEETS WITH CONSTITUTIONAL OBJECTIONS because the newly worded provision makes it possible to substantially amend Treaty foundations of the European Union without the mandatory participation of legislative bodies beyond the Member States executive powers. The duty to inform the national parliaments set out in Article 352.2 TFEU does not alter this; for the Commission need only draw the national Parliaments’ attention to a corresponding lawmaking proposal. With a view to the undetermined nature of future cases of application of the flexibility clause, ITS USE CONSTITUTIONALLY REQUIRES RATIFICATION BY THE GERMAN BUNDESTAG AND BUNDESRAT on the basis of Article 23.1 sentences 2 and 3 of the Basic Law. The German representative in the Council may not declare the formal approval of a corresponding lawmaking proposal of the Commission on behalf of the Federal Republic of Germany as long as these constitutionally required preconditions are not fulfilled.

  7. Further note that the changes that the German Constitutional Court is proposing (votes in the Bundestag and Bundestag) before the German head of government is empowered to vote in the EU Council using the ‘flexibility’ clause (article 352 TFEU) will not work. The German leader commands a majority in the national parliament so will be able to rubber-stamp approval to use Article 352 TFEU in just the same way she got them to rubber-stamp approval of the Lisbon Treaty. Therefore the German constitutional court has confirmed that this is a self-amending treaty without requiring any remedy that be expected to work.

  8. The German leader commands a majority in the national parliament so will be able to rubber-stamp approval to use Article 352 TFEU in just the same way she got them to rubber-stamp approval of the Lisbon Treaty. Therefore the German constitutional court has confirmed that this is a self-amending treaty without requiring any remedy that be expected to work.

    This argument implies that any and all legislation that the German government supports is illegitimate. I doubt that the Bundesverfassungsgericht means that.

  9. The German Court has stated ever so nicely that the EU as a non-democratic organisation is not entitled to replace German sovereignty, and that once it becomes such a beast (unlikely event I would have thought!), then it can only replace German Parliamentary Sovereignty partially. It was the gentlest rebuke couched in the most genteel language.

    But let’s not underestimate the determination of the German court. If the EU regards this as a minor criticism which can be patched up with a little legislation here and there, it would be wrong. This was a declaration of stunning significance, which will only gradually become apparent as time allows this ruling to become the basis of Germany’s future relationship with the EU.

  10. Falco – fair enough (although I’ve gone on at length here in recent months about how the superstate “project” is a fantasy, so won’t go over it again).

    And naturally I agree that “those countries and peoples who want less integration should be equally respected” (it’s part of the reason I’m in favour of a multi-tier Europe), but must contest the assertion that this is “not exactly a guiding principle of the project”, for two reasons:

    1) Thanks to the need for unanimity, the EU has only been progressing at the speed that the least enthusiastic member state is prepared to move, and

    2) The subsidiarity principle, introduced with Maastricht and confirmed/strengthened in every subsequent treaty, expressly undermines the idea that ever greater centralisation/integration is the EU’s aim.

    Freeborn John – as Alex says, above, by that logic, etc.

    Tapestry – Yep, it’s significant. And complicated. And genuinely fascinating – for all kinds of different reasons.

    And yep, you highlight perhaps the most significant ruling: This is the first time that a member state (and it just happens to be the biggest, most powerful member state that contributes the most to the budget) has put a definite limit and definite conditions on the concept of “ever closer union”.

    Noting that the EU is not a fully democratic organisation is also significant – but not in the way some eurosceptics have already started to claim. It’s significant because of the point that if the EU ever does become fully democratic, it will have the potential to challenge the democratic legitimacy of the governments of the member states. (That’s basically the same argument as that used against an elected House of Lords – it would undermine the legitimacy of the Commons.) In the view of the German Constitutional Court, the European Parliament’s underdeveloped status is actually a positive thing – because this maintains the influence of the governments of individual member states via “conferral” (i.e. intergovernmental decision-making at Council level, rather than parliamentary decision-making at EP level).

    So, it’s a great result for those who want to see a European Union of co-operating states, but a bit of a disaster for those hoping for increased EU democracy.

  11. Oh, and for the hardcore geeks among you, here’s the full text of the ruling in English.

    Warning: It’s about 60,000 words…

  12. Pingback: German Constitutional Court rules on Lisbon | Entangled Alliances

  13. Nosemonkey, you are taking a too pessimistic view of the decision by the German Constitutional Counrt / Bundesverfassungsgericht (BVerfG). The BVerfG has clearly stated the limits of “European unification on the basis of a union of sovereign states.” “Under the Treaties [it] 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.”

    However it has not said that it is not possible to build an European state on the basis of something else than a union of sovereign states, which basically would be a United States Of Europe, in which the power emanates from the people and not from the member states. Under Art. 146 GG Germans could always sign up for a new (European or German) constitution, provided that the German people approve it. The United States Of Europe would have to be democratic and provide for human rights in much the same way the Grundgesetz provides.

    More important the BVerfG does not preclude more integration, but tells the German parliament and the German government that it must ensure that the EU does not overstep its competences. German constitutional law is friendly to the EU, but not careless. If the EU wants to act on something, it has to be clear that it is entitled to it.

    Most important the EU cannot just assume competences and create a United States Of Europe through the backdoor. Therefore the nation states must retain key competences. The BVerfG says:

    “European unification on the basis of a union of sovereign states under the Treaties may, however, 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 the 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.

    Even if due to the great successes of European integration, a joint European public that engages in an issue-related cooperation in the rooms of resonance of their respective states is evidently growing (see on this already BVerfGE 89, 155 ; Trenz, Europa in den Medien, Die europäische Integration im Spiegel nationaler Öffentlichkeit, 2005), it cannot be overlooked, however, that the public perception of factual issues and of political leaders remains connected to a considerable extent to patterns of identification which are related to the nation-state, language, history and culture. The principle of democracy as well as the principle of subsidiarity, which is structurally demanded by Article 23.1 sentence 1 of the Basic Law as well, therefore require to factually restrict the transfer and exercise of sovereign powers to the European Union in a predictable manner particularly in central political areas of the space of personal development and the shaping of the circumstances of life by social policy. In these areas, it particularly suggests itself to draw the limit where the coordination of circumstances with a cross-border dimension is factually required.

    What has always been deemed especially sensitive for the ability of a constitutional state to democratically shape itself are decisions on substantive and formal criminal law (1), on the disposition of the police monopoly on the use of force towards the interior and of the military monopoly on the use of force towards the exterior (2), the fundamental fiscal decisions on public revenue and public expenditure, with the latter being particularly motivated, inter alia, by social-policy considerations (3), decisions on the shaping of circumstances of life in a social state (4) and decisions which are of particular importance culturally, for instance as regards family law, the school and education system and dealing with religious communities (5).”

    The nation states are still the basis of the political life in Europe and this cannot be changed overnight and especially not in an un-democratic top-down decision. The decision must come from the bottom, from the people. This is basically what the BVerfG says. It does not say that there cannot or must not be more integration or that the EU cannot gain more competences by agreement among the member states and their respective parliaments.

    Your argument above that the decision precludes the EU from becoming more democratic, so that it cannot undermine the nation states, is mostly incorrect. Nothing in this decision prevents the EU from becoming more democratic, actually it encourages it. However for the time being, the nation states must retain key competences, because people still think in regard to nation states. The BVerfG is not afraid of the EU, however it wants more openness and more open discussion on the future of Europe and more democratic accountability.

  14. Whether I’m being pessimistic or not really depends on your perception. Personally I think it’s a very positive ruling (and from your last paragraph perhaps I wasn’t clear enough in this) – because what it’s criticising is the current model of EU decision-making which gives far too much power to the governments of the member states, and too little to the legislatures (and thus the people that they represent).

    It is indeed opening up the possibility for greater EU-level democracy – but only if the people of the member states agree to this, as for the EU to simply take on greater democracy via progressive treaties (under the “ever-closer union” model) could, the ruling argues, undermine the democratic legitimacy and freedom of action (or sovereignty, to use the preferred eurosceptic term) of the governments of the member states.

    The really positive thing here is that the ruling outright rejects the creation of a superstate by stealth – such a thing can now *only* come about if the people (or, at least, the people of Germany) vote for it – and thus destroys one of the longest-running eurosceptic myths of them all.

  15. Nosemonkey: The ruling does not prevent the creation of a superstate by stealth. It merely says the the use of bridging clauses in the Libon treaty to permanently transfer more powers to Brussels by one-time votes in the EU Council can only take place if the German representative has the approval of both chambers of the German parliament. However it is well-known that the German representative in the EU Council is the same person who commands the majority in the German parliament, so such approvals are more-or-less guaranteed. Once the powers have been transferred by such one-time votes then they will be exercised in the same-old way, including by an EU Parliament that the German court recognises cannot have a true democratic legitimacy. Therefore the one-way door to an undemocratic EU remains open.

    Frankly the German Court saw the problems, but felt that the decision to stop the Lisbon Treaty was too big for them to make. It was expedient for them to allow Lisbon to go ahead subject to some minor and ineffectual tweaks to German law. Angela Merkel is already recalling her MPs from holiday in order to rubber-stamp the changes the German Constitutional court wants, just as future Chancellors will do when they want to use the passerelle clauses in the Lisbon treaty.

  16. @John: You state: “It merely says the the use of bridging clauses in the Libon treaty to permanently transfer more powers to Brussels by one-time votes in the EU Council can only take place if the German representative has the approval of both chambers of the German parliament.”

    Your statement is incorrect. The BVerfG very clearly states that the creation of an European “superstate” is not possible under the German constitution. It says (228):

    “Integration requires the willingness to joint action and the acceptance of an autonomous common opinion-formation. However, integration into a free community neither requires submission that is removed from constitutional limitation and control nor forgoing one’s own identity. The Basic Law does not grant the bodies acting on behalf of Germany powers to abandon the right to self-determination of the German people in the form of Germany’s sovereignty under international law by joining a federal state. Due to the irrevocable transfer of sovereignty to a new subject of legitimisation that goes with it, this step is reserved to the directly declared will of the German people alone.”

    So while it is possible that the EU gets more powers, it cannot become a “federal state” without the direct consent of the German people. The reason is that right now the people of Germany are the source of legitimacy of the German government and this cannot be changed, except if the German people agree to merge into a single European state and thereby constitute a part of the “European people”. This also means that the German government and parliament must retain significant powers in the areas that the decision mentions (quoted in my post above). This is not negotiable!

    @nosemonkey: You wrote above: “So, it’s a great result for those who want to see a European Union of co-operating states, but a bit of a disaster for those hoping for increased EU democracy.”

    Therefore I thought you thought this decision was bad for European democracy.

    “Progressive treaties” or more competences for the EU are not forbidden by this decision, however they must not touch several crucial areas or change the overall fabric of the European Union. The EU cannot evolve into a “federal state” (Bundesstaat) by adoption of a new treaty. Before this can happen the German people must be heard, as you correctly say. However the BVerfG does not do this because it is not friendly towards the EU, but because this would be such a fundamental, systemic change that agreement among the political elite would just not do. The EU is built a certain way as an organisation of individual member states with explicit authorization to act in certain areas that a change of this system is not possible under the German constitution.

  17. Freeborn John – Except for the fact that the German government is currently a fairly fragile coalition (a situation that’s pretty common in the German system), and that the German parliament doesn’t work quite like the British one, where outright majorities are far easier to come by (yet still actually rather rare).

    And in any case, by that logic pretty much any parliamentary system is effectively a dictatorship.

    Nial – it’s a disaster for EU democracy in that the German Constitutional Court appears to think that the current system of intergovernmental dealings is preferable to one with a powerful European Parliament, and that a powerful European Parliament is both unnecessary and undesirable. But at the same time it does outline (in very loose terms) a method by which the European Parliament could gain greater powers – expressly through the will of the people. What the likelihood of this ever happening is, though, I have no idea…

  18. Nail: Technically you are correct, if you mean a Westphalian state recognized by other states as such in the world community of states. But from a practical point of view you are wrong because the EU can be regarded as a state in the sense that it is a set of political institutions which exercise supreme authority in those countries which remain EU members.

    The EU is therefore a state in all but name, which has been proved unable to win the consent of the peoples it governs. It must therefore be made to suffer the fate of all political in the democratic age that have lost the consent of the governed.

  19. But the EU doesn’t exert ANY authority in the two prime areas of state power, namely defence and taxation.

    The EU has elements of state-style governance, for sure. But just because something’s hairy doesn’t mean it’s a dog.

  20. @John: You may want to consider that most countries entered the EU after their people approved the membership, including the UK (whose people even rejected leaving the EU), the Scandinavian and Eastern European countries. Anyways, under the treaty of Lisbon countries can leave the EU, if they want to, so we will have ample opportunity to see, if peoples and countries want to be part of the EU or not. You should consider that the last century was not successful in providing peace for the European peoples. I certainly do not want to go back to a Europe dominated by hostile nation states. Nobody who dislikes the EU was ever able to provide an alternative. It is good that people want to reform the EU, but abandoning it, is not an option. For the rest of your argument, I agree with nosemonkeys answer. The BVerfG has created the term “Staatenverbund” to describe the singular construction that is the EU.

    @nosemonkey: The German government is not fragile. I wonder why you think that. German governments have been very stable since 1949.

    There is very little in the decision that suggests that the BVerfG does not support a stronger EU parliament. Neither does it say that it is undesirable. What it says is that currently the EP illustrates that the EU is an organisation that consists of member states, because not all votes in European Elections count the same. The seats are allocated based on population (very roughly), not on the totality of European citizens. This shows that the EU is not a “federal state” but an international organiation sui generis and in itself only partially democratic. This limits and indeed prevents the German governement from agreeing to change the nature of the EU into a “federal state” without the consent of the German people. I am pretty sure, the EP could and indeed will assume further powers under future changes of the treaty and I doubt that the BVerfG would reject them.

    (I have read most of the decision, but not everything. If I missed the part, please let me know the exact wording)

  21. Wake up Nosemonkey: The EU has had a minimum rate of VAT since 1992 that currently prevents Gordon Brown lowering VAT below 15%. And Lisbon creates EU defence capability. The EU institutions (indeed no international institutions) should ever be able to raise revenue directly from citizens because they do not have any citizens of their own. All they have is member-states who alone must decide what powers and budget the international organisations exercise in trust on our behalf. And when those institutions forfeit that trust, and come to regard these powers as theirs and not ours we must take them back. We need to get rid of the EU minimum rate of VAT immediately and all the other accumulated detritus of federalist thought that has come to clog up the arteries of democratic decision-making in the nation-states of Europe.

  22. Nosemonkey. Your stamina is to be admired. The essential point about the judgement of the German Constitutional Court is that it coincides with the intentions of the Member States who negotiated and agreed the Lisbon Treaty. The EU remains, under the Lisbon Treaty, in the memorable words of Jacques Delors “an unidentified institutional object”. The Treaty also marks, it seems to me, the high-water mark of European integration.

    The judgement has many interesting elements, including recognition of the principle of primacy and that CFSP remains intergovernmental and a subject of international rather than EU law (para. 390).

    It is wrong on a number of points (or at least not in tune with the prevailing orthodoxy) e.g. if energy is a “new” competence, how does the EU manage to have an energy policy under the existing treaties? It is equally wrong with regard to the flexibility clause mixing up the concept of a transferred competence with the lack of the specific necessary “powers” to implement a policy which can be inferred from existing treaty provisions.

    But, by any measure, an historic judgement.

  23. @JL: I agree with your middle paragraph, though I am not sure if that has been disputed and I disagree with the rest of your statement.

    I cannot see that the BVerfG decision marks a “high-water-mark of European integration”. At least that is neither the intention nor the object of the decision. The decision is concerned in setting limits for European integration, but not in the sense that further integration was impossible, especially not in areas like finance, environmental policy and many more.

    I am not sure what your point about energy policy is. I could not find “energy” as a keyword in the text of the decision, except in a brief reference by one of the people who sued. Please elaborate.

    And then, there is this: “It is equally wrong with regard to the flexibility clause mixing up the concept of a transferred competence with the lack of the specific necessary “powers” to implement a policy which can be inferred from existing treaty provisions.”

    Your somewhat cryptic comment seems to be based on a misunderstanding of the decision. The decision merely says that Bundestag and Bundesrat have to approve any changes to the treaty that are enacted by using the flexibility clause! It does not reject the concept of “inferred” or “implied powers”. Indeed it distinguishes meticulously between the different ways to change the treaties.

  24. @Nail. To take your points in turn.

    As the clear implication of the judgement is that the EU cannot pursue further major institutional change as far as Germany is concerned without a new German Constitution being put in place, which is an unlikely possibility, to say the least, I cannot see anything in the future other than consolidation of the institutional structure of the EU as it will stand after the Lisbon Treaty is ratified. But that is not really the important point. The important fact is that the governments of all the other Member States seem to agree with the proposition that the EU has reached an institutional end station even if they may not agree with the reasoning of the Constitutional Court.

    I think that we also need to distinguish between normal policy developments within the context of the new treaties and institutional change in the sense of additional competences i.e. prerogatives being given to the EU.

    In fact, the court overstates the degree of change that the Lisbon Treaty will bring about. (The more accurate assessment is that of Professor Alan Dashwood: “a sheep in sheep’s clothing”). This enables the Court to puff its own importance as defender of the German Constitution (which is not the only one in Europe).

    The reference to energy is in para. 60. The general legal consensus that I have been reading leads one to the conclusion that the “new” competences could easily fit within the doctrine of implied powers i.e. had the political will been there the necessary decisions could have been taken by reference to the relevant treaty article(s) and the existing TEC flexibility clause.

    As regards the Court’s, in my view, mistaken reading with regard to the new flexibility clause, I quote para. 327. “The provision can thus serve to create a competence which makes action on the European level possible in almost the entire area of application of the primary law”. This is exactly what the flexibility clause does not do. Furthermore, you are confusing new procedures for changes in treaty procedures, without further treaty amendment, with the use of the new flexibility clause. The two issues are entirely separate.

    To conclude on two other points, from the plethora of issues raised, what the German people decide to do nationally with regard to implementing the Lisbon Treaty is their own affair, as long as this does not conflict with the obligations they have assumed. There are some disquieting elements in the formulations used by the Court (social policy, language etc.) on national prerogatives but I do not think that this will give rise to any practical difficulties.

    I used the quote from Delors because the judgement states what the EU is not but does not say what it is. To refer to it as “an association of sovereign states to which the principle of conferral applies” does not get us very far. Furthermore, the Court uses the term “supranational” without defining it (although it can be inferred from the rather hazy formulations contained in para. 342).

  25. Some further food for thought. It is instructive to compare the various versions of the first draft article of the ‘Constitution’ and the final text versions as they appear in the constitutional text and the Lisbon Treaty.

    —-
    1. First version

    Reflecting the will of the peoples and the States of Europe to build a common future, this Constitution establishes a Union [entitled...], within which the policies of the Member States shall be coordinated, and which shall administer certain common competences on a federal basis.

    2. Final version

    Reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union, on which the Member States confer competences to attain objectives they have in common. The Union shall coordinate the policies by which the Member States aim to achieve these objectives, and shall exercise on a Community basis the competences they confer on it.

    3. Lisbon Treaty

    By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’ [on which the Member States confer competences to attain objectives they have in common].

    This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.

    [Third indent deleted].

    [The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the Union (hereinafter referred to as "the Treaties"). These two Treaties shall have the same legal value. The Union shall replace and succeed the European Communities].

    The material withing brackets in 3 represents the amendments to the existing TEU. The reference to “on a federal basis” when tabled in February 2003 by Giscard caused uproar. The fact that it happened to be true did not matter. It had to be replaced by the anaemic “on a Community basis”.

    The Lisbon Treaty, sensibly, does not bother with trying to define the working arrangements of the new EU but simply spells out in detail what they are. They resemble very closely existing EU working arrangements which, in turn, resemble very closely the arrangements for federal government in Germany and Austria, and to a lesser extent the UK and Spain, i.e. a form of government which differs from the US or Australian versions, for example, in that there is no separate federal administration with independent capital territories. The laender (just like the Member States of the EU) cooperate in the implementation of “federal” decisions.

    The Constitutional Court ties itself in knots trying to avoid the obvious viz. that, in a number of very carefully circumscribed areas, now more tightly defined than ever in the Lisbon Treaty, the EU exercises certain competences “on a federal basis”. (What could be more federal than a single currency?). However, in tilting at every windmill erected by the plaintiffs in the case it has, willingly or unwillingly, intentionally or unintentionally, done a tremendous amount to clarify matters.

  26. @JL: You are right: I was wrong in linking the flexibility clause with new ways to amend the treaties. I think the BVerfG is concerned that the flexibility clause might in fact lead to a backdoor expansion of EU powers, even though it is specifically forbidden. Still as we know since John Marshall’s decision in McCulloch vs. Maryland (1819), the theory of implied powers can be understood in a very expansive way and the BVerfG wanted to make it absolutly clear that it is not going to accept such an interpretation of the Lisbon treaty.

    I have nothing to add to your other comments, which I basically agree with, except for the fact that the BVerfG has invented the term “Staatenverbund” to describe what the EU is. Basically this term cannot be translated into English, but it means that the EU is somewhere between a federation (Bundesstaat) and a confederation (Staatenbund). There is a German wikipedia entry on Staatenverbund but no English translation.

    Indeed, the BVerfG has tried very hard to explain what the EU is and is not. “Nobody” other than Germans would ever bother to do it. ;) We just love definitions and highly elaborate and abstract models of thought, even if their pratical use is limited. You need to understand this to understand the decision. This decision is less about what the EU can or cannot do (even though it deals with this matter) and much more what the EU is and should not become. It does not matter to the court that the EU is in some ways similar to countries with a federal system of government, its primary intention is to say that the EU must not become a full federal state without the consent of the German people, even if it is partially a federal state already. Very German, but also pretty helpful. ;)

  27. @ Nail. Thank you for your reply and the reasoned manner in which it has been couched. There is something for everybody in the decision of the Court. It presupposes that someone out there is trying to steal Germany’s constitutional toffee apple when noone – outside Germany that is – has the slightest interest in Germany’s internal constitutional arrangements. What the judgement is really about is the Court defending its turf against the ECJ. Nothing new there! But there is a strong hint that it has circumscribed its grudging earlier acceptance of the principle of primacy. If every constitutional court in the EU can decide where the dividing line between its prerogatives and those of the ECJ lies, it means the end of the EU. It also leaves the general attitude of Germany to the EU open to misinterpretation.

    I do not think that it will come to this in practice as bluster behind agreed demarcation lines seems likely to continue. This explains why ‘Brussels’ is so relieved.

    In practical terms, the concept of the democratic deficit boils down to the inability of national parliaments to control what ministers do in the Council. But ministers must negotiate and, if they have no freedom to do so, the machinery of governance in the EU will break down. That is the test facing the German government in drafting the new legislation. Denmark ties the hands of its ministers before they go to Brussels and this does not matter very much. But Germany?

    The judgement also contains many elementary errors because of its failure to confront what it means by Staatenverbund. I have sufficient German to be able to read the Wikipedia entry and the subtle distinctions to which you refer – which I am grateful to you for explaining – are likely to be entirely lost in the debate outside Germany.

    It may also be noted that the final wording in relation to competences in the Constitutional Treaty was totally ambiguous and could have given rise to real difficulty had the Treaty been adopted. The Lisbon Treaty is a model of clarity in comparison viz. “on which Member States confer competences to attain objectives they have in common”.
    The treaties by definition confer “competences”, undefined, for every action that the EU treaties (old and new) entitle Member States to undertake. This includes, for example, a competence to implement the CFSP. Any other conclusion would be ridiculous. But the Court makes a good stab at it. In the process, it seems to deny the ECJ the right to interpret the dividing line between the CFSP and other area of EU policy as provided for in Article 40 TEU (Lisbon).

  28. @Nail. To lighten the somewhat sombre tone of my last contribution. Where the Constitutional Court gets it right is in relation to the European Parliament. The ‘Parliament’ cannot be a source of democratic legitimacy if, for no other reason, than that it has no right to raise taxation, a point not adverted to by the Court. (“No taxation etc.”). But the interesting aspect of the Court’s reasoning relates to the “one man, one vote” principle on which it relies to a rather inordinate extent.

    In all federal systems, the principle of the separation of powers (raised by some of the plaintiffs in the case) usually relies on a system of checks and balances, with the ‘national assembly’ representing the common voter and the ‘senate’ the interests of the states. Hitherto, the conventional wisdom has been that the European Parliament represents the first and the Council the latter. The judgement, correctly in my view, blows a hole in this argumentation.

    Under the Lisbon Treaty, as qualified majority voting in the Council will be based on population from 2014 onwards and representation in the EP will be based on ‘degressive proportionality’ (whatever that means), the roles are reversed (to the obvious benefit of the six largest Member States).

    What really matters, of course, is the distinction between unanimity and qualified majority voting rather than the method which applies to the latter. But the change is interesting in the context of the only real institutional challenge remaining for the EU i.e. how to cope with further enlargement. The new system will remove the need for disputes about voting weights and is much more likely to gain popular acceptance e.g. in the context of enlargement to include the Balkan Member States (which nobody disputes are within Europe, whatever about Turkey).

  29. Sorry for joining your discussion for a small contribution. I came accidentally across this threat via a Google search on the Lisbon Treaty. One commentator here (Falco) brings up a quite interesting question about the German mind-set. He says:

    “Why do they (the Germans) believe that the EU is the best way of going about this? Trade does not rely on us all being under the same jurisdiction, indeed it can be enhanced by being under differing systems, (thereby tending to produce different surplus in different areas). You may well be correct on their motivation but I do think there must be more to it, (damned if I know what though).”

    I am German born and followed the “Pan-European” discussion over here since its early days of the “Coal and Steel Union”. I believe that the “enthusiasm” for a United Europe was born out of a “guilt feeling” about Europe’s past. It was widely agreed on that nationalistic desires and knock-out competition was the main reason for those disasters. Especially many French and the Germans swore: “Never again war among the European cousins”.

    Quite influential politicians as Fanfani, Mollet, Wehner, Kiesinger and later Heath, Brandt, Tindemans and Fischer believed that only a “European Federation” with some kind of guiding central government could guarantee this long-lasting goal of a conflict-free Europe.

    But times changed. Meanwhile nobody believes any more that a big war among Europeans is still possible; hence, the gradually change of opinion also in Germany. Now, a clear majority (if asked at the polls) does not see a necessity to create a European supra-state. Most people over here are pretty content with just a friendly cooperating free-trade Europe without giving up too much national right to Brussels. The ruling of the Constitutional Court in Karlsruhe on June 30th 2009 reflected exactly, yet very politely, this contemporary “state of mind”.

  30. Hermitter: No need to say sorry, everyone can join (as long as nosemonkey approves). I am not sure about the accuracy of your perception though. I do not think that there is a change in perception in how Germans view the EU that lead to the decision of the BVerfG. Indeed the decision of the BVerfG was only discussed briefly among the general populace. Its long-term effect might be greater than its immediate effect, but the decision did not cause any big national discussion. Germans generally view the EU more favorably than most other Europeans and I do not see any evidence that this has changed. See the current Eurobarometer:
    http://www.spiegel.de/media/0,4906,19735,00.pdf

    In any event, we are way past a mere free-trade zone. And we are not just past that because some crazy EU-guys want it, the majority of the German people think that the EU should have a say in a variety of matters. So I do not agree with your interpretation at all.

    @JL: I am not quite sure what to make of your second post, but in reply to your first post, let me say that the BVerfG has made it always clear (though not in such explicit language). To a large extent the new decision merely builds on and expands older decisions (like “Maastricht”: http://www.servat.unibe.ch/dfr/bv089155.html). Back then, the court already said that it was going to uphold core elements of german constitutional law, especially the Grundrechte (human rights).

    It is a bit unfair to say that the court merely defends it turf. It really does more than that, it defends the core of the current constitutional structure of Germany. I do not think that this decision leaves the German attitude towards the EU open for misunderstandings. Quite the contrary, it makes the limits pretty clear. And these limits contain the core of German “Staatlichkeit”, the essence of the German state – not environmental policy (for instance). Yes, the BVerfG also demands more involvment by the Bundestag and basically scolds parliament and government for not doing enough.

    There really has not much debate about this decision in Germany. It is too long and too complex and you really need to have some proficiency in German constituional law to understand it. And even then it is a challenge. I do not profess to understand all details, because I have never dealt extensivly with European law, only some of the basics. And it changes all the time anyways. ;) One should really consider this decision as approval of the current development of the EU with some important caveats and limits.

  31. @ Hermitter. Feel free to join the conversation as far as I am concerned.

    I do not dispute the fact that Germans are rather justifiably fed up of the EU at the moment but the country does about 80% of its trade with other Member States and has a colossal visible trade surplus (even if this is dropping sharply in the current recession). In other words, Europe is a good deal for Germany. Self-interest, as is the case with all states, is the motivation.

    Moreover, states, and especially in Europe, are aware that free trade did not stop previous disasters. I think that, as a result, there is general recognition that only economic, social and political integration, in this age of globalisation, can prevent future disasters. The issue is the degree of integration. (If the Court judgement helps political opinion in Germany to come to some resolution on this issue, it must be welcomed).

    It is clear from even the limited treaty texts that I have quoted that Giscard, and those leaders who instigated the convening of the European Convention, completely misjudged the sentiments, not only of German citizens, but also those of other Member States. Giscard may have thought that it was 1776 but others should have been more realistic and not have turned a sheep into a constitutional wolf in the public mind out to devour helpless states. The history of events since has been one of trying to recover from a series of further political cock-ups. The Lisbon Treaty, warts and all, is the final recovery plan.

    Europe could limp on without it. But the political cost would be enormous and the future sequence of events unpredictable.

  32. I do not think that Germans are fed up with the EU. And indeed many other countries seem to look at the EU more favorably since the start of the economic crisis.

    The German trade surplus is really a mixed-blessing. Germany needs to stimulate domestic demand (this just as a sidenote).

    Germany does about 64% of its trade with European countries and not 80%.

    I agree about your assessment on the EU constitution though.

  33. @Nail. I can only quote from the press release sanctioned by the Court itself. “European unification on the basis of a union of sovereign states under the Treaties may, however, 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”. This a rather sweeping statement and the entitlement of any constitutional court in Europe to make it must be in doubt. What matters is what sovereign governments as signatories to a treaty have signed up to (including the arrangements for judicial review of what they have signed up to).

    But, we are in agreement on the essential point viz. that the Constitutional Court is unlikely to come deliberately into conflict with the ECJ.

    My second post, I confess, is rather dense. It is prompted by the ruminations of the Court on the nature of democracy e.g. “As provided by German electoral law, the constitutionally required parliamentary rule is achieved by reflecting the will of the electorate as proportionally as possible in the allocation of seats” (para. 214). The lack of proportionality in the allocation of seats in the European Parliament is seen as one of the major factors in detracting from the legitimacy of the European Parliament.

    The new system of double majority under the Lisbon Treaty (Member States and population) meets the requirements of the Court at least in the matter of proportionality as far as the Council of Ministers is concerned in the matter of votes.

    The judgement of the Court is hardly summertime reading on the beaches of Europe. I am not taking it with me. But it is certainly being studied widely across Europe if not in the popular press.

  34. @Nail. I agree that my sentence, “The ruling of the Constitutional Court in Karlsruhe on June 30th 2009 reflected exactly, yet very politely, this contemporary ‘state of mind’”, was, scholarly seen, not “accurate” since this assumption is not based on a representative poll. But one should not overlook that quite influential and powerful political forces were backing this constitutional complaint. E.g., Dr Peter Gauweiler is not only a “simple” Bundestag MP, but is acting on behalf of the most powerful conservative fraction within the CDU/CSU. Dr Gregor Gysi is the head of the Socialists, who are very strong in former East Germany; and Baden-Wurttemberg, as one of the most powerful laender, filed the complaint on behalf of the Bundesrat and rest of the Bundeslaender.

    So, it wasn’t just “one individual” complaining to the Court, but the most powerful political forces (besides the federal government) in the country. Different from the US Supreme Court, the German Constitutional Court has a ruling-history of seeking consensus and seldom writes opinions that are dissenting too far from “public opinion”. The court uses often “proportionality” to decide what is conform with the Basic Law (and what not). E.g., possessing a small bag of cannabis for one’s own use is fine, says the BVerfG, because law enforcement must be balanced against the right to “free development of personality”. The same “proportionality” is normally applied as a lubricant when the BVerfG meshes with EU law. Each side is jealous of its prerogatives but also eager to avoid confrontation. If seen under this perspective, this ruling of June 30, 2009, is rather a “tsunami” than a “gentle breeze”. You have to read the whole decision very closely (including the complainants’ arguments) to understand this . . . and don’t be fooled by the polite, moderate wording of the verdict. This is just part of this court’s disposition.

    As a matter of fact, this dicision ended the “dream” of a European Federation for good (at least as long as Germany is part of the Club).

  35. @Hermitter: You are obviously German just like me. Therefore your conclusions are a bit surprising: Gauweiler used to be pretty influential until the early 1990s, but certainly is not any more, which is largely due to the fact that he is more than a bit crazy and most people just hate his guts. The influence of Gysi is also to be debated. Certainly he is more interesting in talkshows and as a speaker than as a politician. Both clearly do not represent the mainstream of German politics. So it is hard to argue that they represent anything like a consensus or a general shift in opinion among the German people. By the way, I never said “one individual”, you just made that up.

    It would take many pages to go into the details on your erroneous use of the word “proportionality”, but I will not go into details, because I mostly agree with your statement that this decision is in some ways a departure from earlier decisions – though in other ways it is not and you have to keep that in mind. I think the decision to a large extent reflects the fact that the BVerfG has not spoken on the EU since Maastricht. During the last years we have experienced the steady growth of the EU, so the BVerfG probably felt that it was necessary to clarify a few things. Indeed, it sets a limit of integration and this is relevant for future decisions on further integration.

    You state: “As a matter of fact, this dicision ended the “dream” of a European Federation for good (at least as long as Germany is part of the Club).” As I have said above: This is correct, as long as you are talking about the current German constitution. However such a federation is a really distant prospect. One should not worry too much about it. It is not as if such a federation was just around the corner and now the cruel BVerfG put an end to all dreams.

    @JT: May I ask you, which country you are from?

    Which other court would wonder about the nature of democracy besides a German court? ;)

    I mostly agree with your post. It will be very interesting to see how it will influence the future and the debates about the EU. But really any discusion would be welcome, since most people who want to discuss the limits of the EU right now are a bit extreme and nobody really wants to debate them. The BVerfG certainly is not extreme and it would be great if this decision eventually leads to a broad discussion in Germany and elsewhere about what Europe is and what it should be.

  36. This has been a very interesting discussion but we are back where we started. The failure of the BVerfG is that it has refused to face up to the fact – except in the most circuitous fashion – that there has (a) been a transfer of German sovereignty to the EU (notably in the matter of a single currency) and (b) that the governance of the EU under the Lisbon Treaty in respect of transferred (as opposed to conferred) competences will meet all the exigencies of both democracy and legitimacy – given the EU’s sui generis character – that it outlines in its judgement.

    The EU is not analogous to a state but its decision-making procedures in respect of transferred competences are certainly analogous to those of a functioning representative democracy. It is the failure to draw the distinction between these two aspects that will ultimately condemn the judgement as a flawed one.

  37. @Nail
    No need to get excited. We will just have to wait and see how the Bundestag does its “homework” without that the Lisbon treaty has to be amended before it can be ratified. The next “Antrag auf Erlass einer einstweiligen Anordnung“ (application for a temporary injunction) is surely waiting behind the court door already. In question is the legitimacy of the new EU bodies without a clear division of powers as required by the Basic Law and without a constitutional representation of the German electorate. One relevant point the BVerfG made in this respect is the disproportional allocation of seats in the “Lisbon” EU parliament which differs enormously between EU citizens of different origin. E.g. one German MEP represents 800.000 EU citizens and one Luxemburg MEP only 70.000. This violates the “Gleichheitsgebot” (equality command) of the Basic Law. –
    I doubt therefore that JL’s opinion is correct when he states that “the new system of double majority under the Lisbon Treaty (Member States and population) meets the requirements of the Court at least in the matter of proportionality”. Again, we will see how the Bundestag solves this puzzle.

  38. @Hermitter. Your comments illustrate how incoherent thejudgement of the BVerG really is. It points out (para) 286 that “In federal states, such marked imbalances [on representation] are as a general rule, only tolerated for the second chamber existing beside Parliament, in Germany and Austria, the second chamber is the Bundestrat, in Australia, Belgium and the United States of America, it is the Senate”. What a ridiculous statement! Many countries that are not federations see the need for second chambers and they are part, by definition, of the “parliament ” as legislature just like the Bundesrat is. Indeed, the system of codecision in the EU is directly comparable to the German system (which was deliberately designed to keep a check on central government).

    It is also necessary to discuss the concepts of (a) separation of powers and (b) checks and balances. The first in the case of the EU is assured by dividing the roles of the Commission (especially its sole right of initiative) and those of the “legislature” (Council and EP) and judicial organs (ECJ). The second is a product of the first. Even the VerG has the wit to accept that the requirements of democracy can be met “on the basis of different models” (para. 214).

    Representation in the Bundesrat is not proportional. Under the Lisbon Treaty, it will not be proportional in the EP (which is not seen by the BVerG as becoming a source of full democratic legitimacy unless the EU becomes a federation) but it will be proportional in the Council (if one assumes that population is proportional to electorates in national elections).

    Maybe another court case would be a good idea. We might them get to the heart of the matter.

  39. @JL: You need to read the German text to understand the statement concerning the parliament. The BVerfG differentiates between the Volksvertretung, which is the lower chamber that represents the people and the upper chamber of parliament which represents “something else”. The statement is not at all ridiculous in German. By the way the full conclusion of the BVerfG can be found in paragraph 288, which clearly says: “It is true that the democracy of the European Union is approximated to federalised state concepts; measured against the principle of representative democracy, however, it would to a considerable degree show excessive federalisation.” This conclusion is really hard to deny.

    But nevertheless you try to do that when you say: “The EU is not analogous to a state but its decision-making procedures in respect of transferred competences are certainly analogous to those of a functioning representative democracy.” I disagree completely with your statement. Do you really believe that after Lisbon the EU basically is a democracy that functions like an “ordinary” democratic federal state?

    In this matter I completely agree with Hermitter.

  40. @ Nail. Then we need a better translation!

    I would also, with due respect, ask you to consider more carefully what I write. I specifically said that the EU is not repeat not analagous to a state (whether federal or otherwise) but that its methods of decision-making in respect of conferred competences (and only those transferred in a supranational context really matter) meet the standards that apply in any representative democracy, whatever its structure, and in a manner more suited to German constitutional requirements once the Lisbon Treaty is adopted. The distinction is crucial to my entire argument.

    If what I say were not true, Germany would be participating in an undemocratically constituted international organisation which would surely be in conflict with its constitution.

    The view of the BVerG that you quote is a value judgement, is incorrect and is skating on very thin ice. However, I attribute it solely to the muddled thinking that permeates the judgement. What, incidentally, is the “something else” that the Bundesrat represents?

  41. @JL
    The ruling of the BVerfG reflects only *Germany’s* position in relation to the legitimacy of the “practical consequences” of the Lisbon Treaty after Germany ratifies it. Germany is constituted as a “Federal Republic” and accordingly is the German Basic Law (Constitution) set up. Only this was to be taken into consideration by the BVerfG judges . . . and not the constitutional state of other EU members. Germany can only sign a treaty that is “lawful” under the German Basic Law. If other countries, their High Courts or their parliaments have different perspectives or provisos – then fine. This is exactly what I’ve meant: The BVerfG ruled – the first time to my knowledge – solemnly out of the (“egocentric” you may say) German perspective of the existing German Basic law, without major regard to the practical consequences for the other EU members – it is a kind of “take it or leave it” verdict concerning Germany’s participation in this Treaty. This is a ‘novum’ in the BVerfG’s “proportional” (meaning “Verhältnismäßigkeit” in German) verdict history.

    The BVerfG did not reprove the equal representation (one man per member state) in the Council of the European Union or similar entities; but only the grave inequality when it comes to the parliamentarian (House of Commons) representation of the German electorate compared to those of other member-states. By German law, all people have to represented equally in the main legislative body (one man one equal vote) if this vote is required. The Council of the European Union does not require the individual votes of the EU electorate and is therefore not relevant for this question. This part of the treaty – the planned representation of the German electorate – is, by *German Basic Law* (and only this was the BverfG’s concern) “unconstitutional”.

    Did you understand the difference JL?

  42. @ Hermitter. Please see my last post.

    To the difference between what two issues are you referring? If you tell me what they are, I will certainly try to understand it.

    The BVerfG did not find that the Lisbon Treaty was unconstitutional. So, I do not follow that reference. It found that the implementing legislation as far as Germany is concerned was inadequate but, in coming to that conclusion, gives an erroneous view of the nature of the EU as it stands at present (and will stand under the Lisbon Treaty) for no reason that I can see other than to fit it into the somewhat idiosyncratic constitutional arrangements of the German Basic Law.

    I agree with you completely that it is a take it or leave it judgement. That is why I said in an earlier post that it was open to misinterpretation of Germany’s attitude to the EU. But luckily, where Germany wants to leave it coincides with where other Member States wish to find it.

  43. @JL
    Yes we should leave it at that. Near future will show where “we’re” heading. After being the “pushy EU engine” for almost 4 decades, Germany’s EU-outlook will be, in my opinion, that of just a “normal” member-state which looks after her own interests – as everyone else does meanwhile in this Union of 27. This verdict points in this direction.
    And I agree: It (might) luckily coincides with where other Member States wish to find it.

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