Ausgabe 28/2009

Germany's Lisbon Treaty Ruling Brussels Put Firmly in the Back Seat


Part 2: Declaration of War on the European Court of Justice

Although the Karlsruhe ruling points out that it is initially the job of lawmakers to fulfill this "responsibility for integration," the Constitutional Court ultimately sees this as its own task in the future. By doing so, the German Constitutional Court has essentially declared itself the highest supervisory body in conflicts between Germany and the EU, and thus explicitly placed itself above the European Court of Justice (ECJ).

This borders on a declaration of war on the European Court, which sees itself as the only authority capable of ruling on the validity and applicability of EU law. The judges in Karlsruhe have authoritatively decided that they have won the conflict of competence which has been brewing for years between the two top courts.

Admittedly, the court has included a complicatedly worded supplementary declaration on the Lisbon Treaty that reaffirms the supremacy of the ECJ's judicial authority. But the judges in Karlsruhe did the same thing with this document as they did with a wide range of contentious issues in the Lisbon Treaty text: They interpreted it in a way that makes it compatible with their view of the distribution of power within the EU as an "association of sovereign national states." The judicial supremacy is only valid within the boundaries defined by the court in Karlsruhe, and the Lisbon Treaty is only compatible with the German constitution within the confines of the Karlsruhe interpretation.

For instance, it explicitly states in the Lisbon Treaty that the procedures of the EU are based on representative democracy, and the European Parliament is composed of "representatives of the union's citizens." However, the judges in Karlsruhe argue that contrary to the claim that the Lisbon Treaty "seems to make according to its wording," the EU Parliament is not a "representative body of a sovereign European people."

After all, EU members of parliament were not elected according to the principle of electoral equality, in other words, one man one vote, but rather according to "national contingents," meaning that a Maltese MEP represents 67,000 Maltese, a Swedish MEP has a constituency of 455,000 Swedes, and in Germany the ratio is 1 to 857,000.

'An Association of Sovereign States'

The court says that this stands in contradiction to the remainder of EU law, which is built around the central idea of prohibiting discrimination based on nationality. According to the concluding statements of the court's decision, this contradiction can only be explained by the fact that the EU is not a state but rather an "association of sovereign states" and, consequently, there can be no sovereign citizens' union as well as no completely representative organ in the form of the European Parliament, with the result that the Bundestag must receive substantially more rights. Quod erat demonstrandum.

The Karlsruhe interpretation thus very elegantly demolishes the old European idea that the recognized democratic deficits in the EU would disappear completely of their own accord by enhancing the rights of the European Parliament -- and democracy à la Brussels could one day, as MEP Klaus-Heiner Lehne puts it, "assume the role of the national parliaments."

The European Parliament, as the judges in Karlsruhe clearly state, is terminally undemocratic -- at least when measured against the basic concepts of representative democracy. The "small democratic deficit" of the Union, as Schorkopf puts it, has now been exposed as a "large democratic deficit."

As a result, the German Constitutional Court concludes that even in the future, Brussels cannot be granted greater scope to enact legislation. This means that the plan to grant Brussels the ability to legislate criminal law in a number of EU policy areas will have to be largely dropped due to the risk of it being "without limits." The court says that Brussels' authority to enact legislation on criminal law can only be reconciled with German sovereign rights if jurisdictions are narrowly defined.

A "blanket empowerment" contained in the Lisbon Treaty allows the Council of Ministers to expand the list of criminal offenses "on the basis of developments in crime" and grants the EU the power to enact minimum regulations to combat cross-border crime. However, the Karlsruhe judges contend that the blanket empowerment really only applies to the "cross-border dimension of a specific criminal offense."

Limits to Further Integration

Primarily, however, the judges declared for the first time that it is imperative to maintain the "space for the political formation of the economic, cultural and social living conditions" in the member states. In this national sanctuary, the judges see both "areas which shape the citizens' circumstances of life, in particular their private spaces of personal responsibility and political and social security, as protected by their fundamental rights," as well as "political decisions that particularly depend on a previous understanding of culture, history and language and which discursively unfold in a public political arena organized by party politics and parliament."

According to the judges' ruling, these "essential areas of democratic organization" explicitly comprise "citizenship, the civil and military monopoly on the use of force, revenue and expenditure, including external financing and all elements of encroachment that are decisive for the realization 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 speaking a language, shaping the circumstances concerning family and education, ensuring freedom of opinion, of the press and of association, and accommodating professions of faith or ideology."

These are the limits that EU member state Germany has to set on future European integration. The "identity" of the German constitutional order may not be damaged by Brussels. Identity takes priority over integration.


© DER SPIEGEL 28/2009
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