Der SPIEGEL

Der SPIEGEL

07/06/2009 12:00 AM

Germany's Lisbon Treaty Ruling

Brussels Put Firmly in the Back Seat

By SPIEGEL Staff

Last week's ruling by the German Constitutional Court, coupled with demands by one conservative party for changes to the constitution, may not only jeopardize Berlin's schedule for the ratification of the Lisbon Treaty. The Karlsruhe ruling also threatens future steps toward European integration.

When the parliamentary group of the Christian Social Union (CSU) -- the Bavarian sister party to Chancellor Angela Merkel's conservative Christian Democrats -- met in Berlin last Thursday, they had a hero to celebrate. "You have saved our honor," said CSU representative Hans-Peter Friedrich to his party colleague and friend Peter Gauweiler.

Gauweiler, a lawyer from Munich -- and a political maverick who is the enfant terrible of the conservative group in the German parliament or Bundestag -- was largely successful with the legal complaint he filed with the German Constitutional Court against the EU Lisbon Treaty. Now it's official: The ratification by the overwhelming majority of the German parliament -- including the CSU -- was negligent. In essence, the court ruled that by passing the so-called "accompanying law" to the Lisbon Treaty, which determines the rights of German parliament to participate in European legislation, the representatives had relinquished significant monitoring rights to Brussels. According to the judges, this unconstitutionally subjects the people that they represent to the whims of a bureaucracy that lacks sufficient democratic legitimacy.

But the CSU cares little about past errors. Now the idea is to push ahead and "Gauweiler" them! Last Thursday, the politicians from Bavaria decided to follow up their success with a new set of demands. They want the Lisbon Treaty to be ratified only under condition that the new EU law would only be valid in Germany "in accordance with the decision by the German Constitutional Court." They are now demanding a solution that gives "maximum" parliamentary influence over future EU policy.

The CSU parliamentary group aims to approve an entire catalog of demands at a party meeting in the former Benedictine monastery of Kloster Banz in mid-July. The Bavarians even want to push through a number of changes to the German constitution. One of these would oblige the government to adhere to the parliament's position papers on European policy. "Our Constitutional Court demands greater rights of co-determination," says CSU Secretary General Alexander Dobrindt and "we have to comply. It would be good if the decisions of the lower house of parliament, the Bundestag, and Germany's upper legislative chamber, the Bundesrat, on changes to the EU Treaty were complemented in the future by a referendum." "People are going to have to make considerable concessions to us to receive the CSU's support," says Thomas Silberhorn, CSU parliamentary group spokesman on EU affairs.

Not all of this is realistic. But it's a political bombshell that could torpedo the German government's Lisbon rescue concept. If the coalition partners still have to struggle with major stipulations so shortly before the summer break, then there is no chance of doing a quick and quiet fix that would satisfy the Constitutional Court's criticism of the accompanying law's flaws.

Tears of Frustration Ahead

In addition to undermining the effectiveness of Germany's ratification of the Lisbon Treaty, this could tip the scales for the other European countries that have yet to ratify -- namely Ireland, Poland and the Czech Republic. The conditions posed by the court in Karlsruhe will make things "much more difficult than we had imagined," the leaders of the conservative parliamentary group that combines the CDU and CSU admitted late last week.

That's putting it mildly. The Bavarians' "Gauweiler" tactics only provide an inkling of the inner political strife that is in store for Germany. Despite the premature cries of triumph among staunch EU supporters in the ruling coalition and in Brussels, last Tuesday's ruling on the Lisbon Treaty will yet unleash rage and tears of frustration.

Now that the court in Karlsruhe has spelled out Germany's role in European unification, this heralds the end of a policy of increasing integration. According to the judges, Germany's future lies not in "a united Europe" -- but rather in Germany. In the future, the most powerful EU partner will also be the most difficult one, even if -- despite Gauweiler's legal challenge -- it ends up unconditionally ratifying the Lisbon Treaty.

This would be true even without the conditions proposed by the CSU. The German Constitutional Court has found its own unique way of effectively putting the brakes on European policy.

The judges wrote that "if obvious transgressions of boundaries take place when the European Union claims competences," then they will call for a "review" to "preserve the inviolable core content of the Basic Law's constitutional identity."

That is the kind of wording that goes beyond the dreams of Gauweiler and his friends. It simply means that the court assumes the right to single-handedly determine the boundaries of European integration -- in a broad sense and, if necessary, in detail.

Member States Remain 'Masters of the Treaties'

Frank Schorkopf, a former associate of the judge who authored the ruling, Udo Di Fabio, and now a professor of constitutional law in Göttingen, sees this as a "more intelligent version" of a treaty proviso. It is a "supple, dynamic stipulation," which allows the Constitutional Court greater flexibility and sensitivity, but also places great future demands on the judges because "the court has thus taken on the responsibility of fulfilling this monitoring function," says Schorkopf.

The court has prescribed a two-fold approach: The parliamentarians have to add far-reaching monitoring rights to the accompanying law criticized by the judges in Karlsruhe, should it come to the extension of Brussels' competences provided for under the Lisbon Treaty. In addition, the Constitutional Court will ensure that these monitoring rights are appropriately applied.

After all, making additional demands on the accompanying law is "a fine thing," says Lüder Gerken, director of the Freiburg-based Center for European Policy. But "the key aspect," says Gerken, is the court's statements that member states -- including of course Germany -- "still remain the masters of the treaties" and "therefore must see to it that there are no uncontrolled, independent centralization dynamics" within the EU.

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.

EU Supporters Are in for a Bumpy Ride

"The European train is no longer headed toward an arbitrary destination with no stops along the way," says former constitutional judge Paul Kirchhof, adding that the court has marked the Lisbon Treaty as a "clear terminus." There will be "no European state under the provisions of the German constitution." And Schorkopf summarizes the ruling in one sentence: "The European Union is a contract-based association of sovereign states, and as such, takes a political back seat."

And with Germany in the front seat, EU supporters are in for a bumpy ride. No matter what the representatives of the Berlin government decide at the Council of Ministers in Brussels, their decisions will be subjected to three possible tests back home. First, the court wants to ensure that the EU does not overstep its contractual competences. Second, the judges intend to enforce the "subsidiary principal" enshrined in EU law, which largely prohibits Brussels from taking action if a member state can handle the issues in question just as effectively on its own. Third, the judges now reserve the right to conduct an "identity check," in other words, to test whether Germany still performs the functions that the Constitutional Court itself has defined as national tasks of government.

In order to ensure that the Lisbon Treaty will be treated in future as the Karlsruhe Treaty, the court has submitted a highly unusual request to the Bundestag to pass a new trial law. This could allow every citizen to file a special EU suit with the German Constitutional Court against unpopular European regulations and standards.

Given the new severity on European issues in Karlsruhe, such a procedure could make it almost impossible for Berlin to pursue its own European policy. No matter what German representatives agree to in Brussels, they will now always run the risk of receiving a phone call from Karlsruhe because a clever lawyer like Gauweiler has filed a complaint. This would create an untenable situation for the other 26 member states on the Council.

Limiting Berlin's Highhandedness

At the same time, however, by more strongly tying the Germans to the political body in Brussels, the court has limited the highhandedness of the German government, which has all too often pushed through political goals that were difficult to achieve back home by going behind the back or against the will of the Bundestag. One example that comes to mind is a statement by the former Economics Minister Wolfgang Clement, a member of the Social Democrats, who voted in favor of an EU software patent guideline in 2005, overriding an explicit decision on the matter by the vast majority of the Bundestag. He said that the will of the German parliament "could not be conveyed internationally." And the latest violation of the constitutional principles of data self-determination, namely data retention, was also pushed through by the German government, via Brussels, and against the will of the Bundestag.

The European Union directive, by which all European member states must oblige their telecommunications companies to retain data on their customers' traffic, will presumably be the first test case for the new Karlsruhe rules. The constitutionally guaranteed protection of private space is one of the areas that the court has placed within the context of national identity. And there would be no need to even file a new lawsuit against the directive. After all, a number of constitutional complaints against data retention have been awaiting a decision from Karlsruhe for quite some time.

The judges have never before openly come out against an EU directive. But there's a first time for everything.

THOMAS DARNSTÄDT, DIETMAR HIPP, RENÉ PFISTER

Translated from the German by Paul Cohen

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