Comments on: German Constitutional Court Lisbon Treaty ruling

By: Quotes of the Week (VI) – Kosmopolito

Quotes of the Week (VI) – Kosmopolito — Tue, 21 Jul 2009 19:43:35 +0000

[...] Nosemonkey: the EU’s “democratic deficit”[...] is actually preserving the sovereignty of the member states. [...]

By: Hermitter

Hermitter — Tue, 07 Jul 2009 19:30:23 +0000

@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.

By: JL

JL — Tue, 07 Jul 2009 13:03:08 +0000

@ 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.

By: Hermitter

Hermitter — Tue, 07 Jul 2009 10:25:40 +0000

@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?

By: JL

JL — Tue, 07 Jul 2009 10:07:00 +0000

@ 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?

By: Nail

Nail — Tue, 07 Jul 2009 09:02:18 +0000

@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.

By: JL

JL — Tue, 07 Jul 2009 08:23:26 +0000

@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.

By: Hermitter

Hermitter — Mon, 06 Jul 2009 22:38:54 +0000

@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.

By: JL

JL — Mon, 06 Jul 2009 18:23:11 +0000

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.

By: Nail

Nail — Mon, 06 Jul 2009 15:17:22 +0000

@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.