Germany's High Court Decides Is the European Union Constitutional?

There are those in Germany who think the Lisbon Treaty transfers too much responsibility to Brussels. The Constitutional Court is hearing the case this week. Should it agree, then the treaty is dead.

As trivia questions go, it's not an easy one: What four European Union countries have yet to ratify the Lisbon Treaty?

The second senate of the German Constitutional Court will decide if the Lisbon Treaty is constitutional.

The second senate of the German Constitutional Court will decide if the Lisbon Treaty is constitutional.

A couple of them are obvious. Ireland, of course, rejected the treaty in a referendum last June, but will likely give the document a second chance in a new poll. And the Czech Republic is no surprise either, given the country's reputation as a Euro-skeptic. Even Poland might be clear given Warsaw's tendency in the past to try and leverage as many last-second concessions as possible out of any EU agreement.

The fourth, though, is not so obvious. After all, the German parliament has already rubber-stamped the treaty and German Chancellor Angela Merkel has signed it.

But not all in Germany are in favor of the Treaty of Lisbon. There are some who worry that it violates the German constitution by exporting core governmental competencies from Berlin to Brussels. President Horst Köhler has withheld his approval of the treaty until the legal questions are clarified. On Tuesday and Wednesday, the German Constitutional Court will hear arguments in the case. And given the fundamental nature of the complaints involved, it is not at all clear that the justices will side with the EU. If they don't, then the Treaty of Lisbon is dead.

It's not a new battle. For years, the German court has been asked to decide on issues relating to EU integration and the question of competency. When the Maastricht Treaty was signed 15 years ago -- an agreement that essentially laid the foundations for the EU as it looks and operates today -- Germany's highest court warned that "even as integration among member states progresses, a lively democracy must remain."

In other words, even as Berlin hands over competencies to the European Union, it can't hand over too many. Otherwise, the German Constitutional Court will step in. But how much is too much?

German parliamentarian Peter Gauweiler, a member of Bavaria's CSU -- the sister party to Chancellor Angela Merkel's CDU -- is among those challenging the Treaty of Lisbon. He argues that the so-called "flexibility clause," which allows the EU to act in areas not explicitly outlined in the treaty, means that Brussels can intervene as it likes, even in those areas reserved for national legislatures.

It is a question that has been raised before. Years ago, Udo di Fabio, one of the eight justices who will be hearing the case this week, warned that the flexibility clause "could be the beginning of the end" when it comes to the constitutionality of European Union law.

Another point of concern for many is the future of the Constitutional Court itself. In the European Constitution, which was firmly rejected in 2005 by referenda in both France and the Netherlands, the primacy of European law over member-state law was first explicitly mentioned. The Treaty of Lisbon varies from the constitution in many respects, but the superiority of EU law in some areas has been maintained. The Court of Justice of the European Union would then have jurisdiction over challenges to such legislation.

Another way of putting it: The case currently before the German court is essentially asking it to hand over some of its own competencies to the European Union. There are plenty of observers who think the justices will decline to do so.

A verdict isn't expected until later this spring. But it has already become clear that some in Berlin are getting nervous. Late last month German Interior Minister Wolfgang Schäuble urged the court to exhibit more "self restraint." He continued by saying, "I have no doubt that the Lisbon Treaty corresponds completely with the constitution."

Brussels will be hoping that the German Constitutional Court agrees.

cgh -- with wire reports


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