The Power Struggle: Merkel Wrestles with Court over Europe's Future

By Dietmar Hipp and René Pfister

Part 2: Are Judges Safeguarding Democracy or Their Own Power?

Constitutional Court judges in Karlsruhe. The court's president, Andreas Vosskuhle, is second from left. Zoom
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Constitutional Court judges in Karlsruhe. The court's president, Andreas Vosskuhle, is second from left.

No one embodies the constitutional court's new approach quite as much as its president, Andreas Vosskuhle. When Vosskuhle, the head of the University of Freiburg at the time, joined the court in May 2008, he was only a second-choice candidate. In fact, the SPD had intended Horst Dreier, a well-known law professor, for the position. But the CDU and its Bavarian sister party, the CSU, rejected him because, among other things, he had mused over qualifying the ban on torture.

Instead of Dreier, a pro-European, Vosskuhle rose to the presidency of the court in March 2010. Since then, the court's Second Senate, which Vosskuhle chairs, has made a series of decisions that many in Berlin and Brussels see as a rejection of the idea of European integration. "The preamble of the constitution makes Europe into a major premise of our constitution," says Alexander Graf Lambsdorff, the head of the pro-business Free Democratic Party (FDP) group in the European Parliament. "Today's judges treat it like an annoying postscript. That's alarming."

It would be too easy to brand Vosskuhle himself as a euroskeptic. Of course, the Constitutional Court has an obligation to consider how the citizens of Europe can be given more democratic powers, rather than being reduced to mere spectators.

But many in Berlin are troubled by Vosskuhle's somewhat academic worldview. While the euro had politicians rushing from one crisis summit to the next, the professor was discussing the monastic calm on the Federal Constitutional Court in the newspaper Die Zeit. "Politicians need more moments of deceleration and reflection to think about fundamental decisions," Vosskuhle told the newspaper in an interview. It's like telling a mother of three adolescents to sit back and relax.

'Gamble of Democracy'

It isn't just a matter of form. In 2009, for example, the court, under then Vice President Vosskuhle, reached a decision on the Lisbon Treaty that weighed heavily on politicians. Many interpreted the decision to mean that the limits of the German constitution had largely been exhausted, and that further European integration was only possible if Germans voted on a new constitution.

The decision can be seen as a call to take the "gamble of democracy," as Vosskuhle once said. In fact, there are indeed good reasons to allow citizens to decide whether they want to see the country they know dissolved into a new entity called Europe. Seen in this light, the Constitutional Court is the keeper of the will of the people.

But a less charitable interpretation of the verdict is also making the rounds within the government. Critics of the court say that because the judges knew that the Germans would never agree to give up their sovereign state, they used the decision to safeguard the importance of their own court.

It is difficult to say which interpretation is correct. It is clear, however, that the Lisbon verdict presents politicians with nearly impossible tasks. The problems begin with the fact that the judges' decision is open to interpretation. Naturally, politicians could heed the advice of former Constitutional Court judge Udo Di Fabio and simply continue with the old constitution, as if nothing had changed. There is still a lot of room left in the constitution for further European integration, Di Fabio said in a SPIEGEL interview.

But do the current judges agree? Vosskuhle, at any rate, said in a discussion about the limits of the constitution last fall that one shouldn't behave "as if there were still an incredibly large amount of the sausage left."

It is unclear which opinion applies -- that of former judge Di Fabio, who authored the rulling on the Lisbon Treaty, or that of current President Vosskuhle.

A New Legal Basis for the State?

Merkel's people, at any rate, are already planning for the possibility that the Karlsruhe court will stop a further transfer of power to Brussels. One option would be to convene a constitutional convention, which would then establish a completely new legal basis for the state.

This is a nice idea, in theory. In practice, however, such a convention would occupy the energies of politicians for years to come, at precisely a time when the common currency is tottering. Not surprisingly, key members of the coalition rule out this scenario.

Another option would be to amend the German constitution to include a new article on Europe. It would open the door for an integration process that would end in a European federal state.

Just how far the government's thinking has come was evident in a SPIEGEL interview given by Finance Minister Wolfgang Schäuble two weeks ago. Schäuble said that a referendum on the constitution could "happen more quickly than I would have expected a few months ago." At first glance, Schäuble's words sound like a kowtow to the will of the Constitutional Court.

A different point of view is being disseminated within the government, however. According to government sources, Schäuble has made a subtle threat to the court. If the constitution is absorbed into a European federal state, this would also lead to a loss of power for the Constitutional Court. For this reason, so goes the argument, the Karlsruhe court should beware of getting in the way of Merkel's European policy.

The pro-Europeans are rooting for Schäuble in his fight with the Constitutional Court. Some of its verdicts are "characterized by great ignorance," says Martin Schulz, the Social Democratic president of the European Parliament.

Lack of Transparency

The members of parliament would probably be less sensitive if the judges would adhere to the same standards they establish for others. When it comes to their own election, the judges are not overly keen to embrace transparency. For the last six decades, the judges on the Constitutional Court have been chosen in backrooms. The judges themselves have repeatedly resisted having to appear in a public hearing, like candidates for the United States Supreme Court.

Last Thursday, Karlsruhe decided on whether the selection of Constitutional Court judges is in keeping with the constitution. It ruled that decisions made out of the public eye are completely acceptable.

Translated from the German by Christopher Sultan

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1. Democracy is fragile and need protection!
SHBasse 07/09/2012
Especially in hard times the temptation to manipulating the system is overwhelming therefore the German Constitutional Court is a protection not only for the Germans but also for us Danes and other Europeans! Mercel has herself proclaimed that it do not help Europe to drag the better functioning Northern European countries down into the economic and political mud of Southern Europe. Unfortunately growth do not come through political capers, growth depends on a deeper understanding of what has happend - we have not just overspent without knowing it before it was too late! The good old days do not return in any case. Before a deeper understanding has been recognized and utilized, further spending is just sending money down the drain. http://unifiedscience2.blogspot.dk/2011/02/deeper-causes-of-downturn.html
2. Merkel's marauders
tnt_ynot 07/09/2012
It's not the high court endagering Europe, that is unless they let Merkel's rough riding over and horror handling of the German populace stand. It is the Eurozone led by Merkel's Marauders that are trampling on the future by breaking every Euro rule made since Maastricht. Anthony http://euro-meltdown.blogspot.com
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