Ausgabe 28/2009

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

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.


© DER SPIEGEL 28/2009
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