Photo Gallery: 'With No Bundestag Veto, We Have a Democratic Problem'

Foto: A3386 Uli Deck/ dpa

SPIEGEL Interview with Ex-German High Court Justice 'It Is a Mistake To Pursue a United States of Europe'

In an interview conducted as he heads into retirement, German Constitutional Court Judge Udo Di Fabio explains why he believes the high court's recent decisions on the European Union will not necessarily hinder further European integration and how he believes debates over possible changes to Germany's constitution to strip power from Karlsruhe are "phoney." 

The Lisbon Treaty, which went into effect on Dec. 1 2009, represents the last major reform of the structures of the European Union. Germany's Federal Constitutional Court subsequently issued a landmark decision, authored by Judge Udo Di Fabio, which stated that the Treaty conformed with Germany's constitution. Nevertheless, the court also underscored that the parliament in Berlin must have greater participation in decisions made by the country at the EU level. Many politicians and journalists believe the ruling could hinder a future deepening of European integration.

In an interview with SPIEGEL, Di Fabio discusses why he believes the Lisbon ruling isn't nearly as critical of the EU as some have interpreted and why strong democratic states are essential to a continuing integrated Europe.

SPIEGEL: Professor Di Fabio, you were the German Constitutional Court's expert on Europe and the author of the controversial decision on the Lisbon Treaty, which has governed the workings of the European Union since 2009. Will politicians in Berlin heave a sigh of relief now that you are retiring from the court?

Di Fabio: I can't imagine that they will. A chamber of the Constitutional Court is a collective decision-making body. You shouldn't overestimate the power of a single judge.

SPIEGEL: Does the government still have to fear that the court in Karlsruhe will put the brakes on European integration?

Di Fabio: I don't think that the Constitutional Court stands in the way of integration efforts. In many respects the court has even strengthened Germany's position.

SPIEGEL: But your president, Andreas Vosskuhle, only recently said with regard to further integration steps that the scope of Germany's constitution, the Basic Law, had been "largely exhausted."

Di Fabio: I think such statements concern sweeping transfers of responsibilities that are currently not up for debate.

SPIEGEL: Didn't the court's decision on the Lisbon Treaty  in effect place strict limits on further European integration by banning the transfer of important political powers from Germany to the EU?

Di Fabio: The decision on the Lisbon Treaty pinpoints the sensitive areas, such as budgetary autonomy. Furthermore, in the euro-zone bailout ruling , issued on Sept. 7 of this year, the court made it clear once again that this particularly concerns the parliament's power of disposition over revenue and expenditure.

SPIEGEL: But this is precisely the aim of the fiscal union to control the debt crisis. If the national budget falls under the control of the European Commission, the next Constitutional Court veto will be just around the corner.

Di Fabio: Not necessarily. Since no politician really intends to transfer their power of disposition over the substance of the national budget at an EU level, there is no insurmountable obstacle.

SPIEGEL: Does it concern the substance when a Brussels fiscal commissioner says to the German parliament, the Bundestag: You're not allowed to pass this budget?

Di Fabio: If Brussels only more closely supervises whether the member states are adhering to the agreements that they have concluded, then this does not constitute an infringement on their identity. Anyone who voluntarily agrees to something has to accept that they will be checked to ensure that this contractual obligation is fulfilled. Such a veto could come from Karlsruhe, however, if there were a violation of the new debt brake (an amendment to Germany's constitution that requires the government to balance its budget each year by 2016).

SPIEGEL: If the European Commission imposed strict regulations on individual countries aimed at debt reduction -- and Germany could one day also be on the receiving end of such measures -- this would place very narrow limits on the parliament's right to determine the budget.

Di Fabio: Each case would have to be examined individually. In principle, if a parliament has passed an act committing itself to the Maastricht stability criteria, it has to accept that violations will not go unsanctioned.

SPIEGEL: On a number of occasions, the court has called for stronger participation  by the Bundestag in the area of crisis management. Currently your former chamber is deliberating  whether it is sufficient to leave decisions concerning billions in loans to ailing countries in the hands of a nine-member committee. All of this delays and complicates bailout attempts.

Di Fabio: Has there ever been a day in the attempts to deal with the European sovereign debt crisis when it was necessary to take action so swiftly that there would have been no time to involve the parliament?

SPIEGEL: Some feel that the nervous markets could become even more nervous.

Di Fabio: The political debates were not time-consuming because of the Constitutional Court or the parliament. In Europe it was totally unclear at first how to appropriately react to the crisis. It is still unclear to some. Why should parliament's participation in the debate be a serious obstacle? On the contrary, it has a politically integrating, legitimating effect.

SPIEGEL: Nevertheless, there are situations when bailout initiatives have to be decided overnight.

Di Fabio: That may be true. Often, however, these are contrived urgent situations for which we still have no practical experience. In any case, under constitutional law, sweeping limitations require parliamentary debate.

SPIEGEL: On numerous occasions, acting under your leadership, the court has admonished parliament that it has to more strongly exercise its rights of scrutiny concerning European decisions. It was the same story with the decision on the Lisbon Treaty. Don't the members of parliament, as representatives of the people, know perfectly well how to exercise their rights?

Di Fabio: Indeed, the parliament's self-confidence is increasing. European affairs are no longer reserved for the executive. The Basic Law of course stipulates the participation of the parliament in European affairs, and it is incumbent upon the Constitutional Court to interpret this provision. Nevertheless, the court can occasionally come to a different interpretation than the one arrived at in the parliamentary process with the participation of the government.

SPIEGEL: Still, the Bundestag is the only directly democratically elected body.

Di Fabio: One would never question the chancellor's authority to decide on government policy based on the fact that she is not directly legitimized. (Editor's note: The German chancellor is elected by the Bundestag.) Why should a court whose judges are elected with a two-thirds majority not also be democratically legitimized? (Editor's note: Half of the Constitutional Court judges are elected by the Bundestag and half by Germany 's upper legislative chamber, the Bundesrat, each by a two-thirds majority.)

SPIEGEL: But do you really have to protect the parliament from itself?

Di Fabio: Of course not. It has to do with protecting minorities from the majority, either through fundamental rights or petitions filed by the opposition. Incidentally, the court is glad to learn about the constraints of public policy, but sometimes it has to play the role of the teacher when it comes to constitutional obligations, such as during the dispute over the European Arrest Warrant . At the time, a number of members of parliament exhibited gaps in information that have manifestly been closed now.

SPIEGEL: Private tutoring in democracy from the German Constitutional Court in Karlsruhe?

Di Fabio: We may have acted as a catalyst and the members of parliament have learned a thing or two. But the development of Europe and the pressures of globalization simply have an executive dominance. Without any bad faith whatsoever, parliaments find themselves constantly chasing to catch up. Indeed, there can and will always be moments when the Constitutional Court has to bolster the rights of the parliament.

SPIEGEL: Isn't the parliament simply overwhelmed by this new task, which involves both domestic and foreign policy, particularly in the case of resolving the financial crisis?

Di Fabio: This argument is as old as parliamentary democracy. Germany's landed gentry used to insinuate that parliaments had no understanding of affairs of state such as the military, foreign policy and finances.

SPIEGEL: Surely things have become a bit more complicated since then.

Di Fabio: But we cannot use this as a reason to leave parliament out in the cold. In a parliament where there is a division of labor it doesn't matter if all 620 parliamentarians do not have a direct impact on a given law at the same time and to the same extent. You will always find someone who doesn't understand everything. What's important is that those who are sitting on the committees -- the Budgetary Committee, the European Affairs Committee -- acquire the necessary expertise. It is my impression that they are continuously doing so.

SPIEGEL: Are these parliamentarians even elected for decisions that transcend the national context?

Di Fabio: Yes. Germany is not a closed state, but rather one that is integrated into Europe. In its decision on the Lisbon Treaty, the German Constitutional Court formulated the principle of Europe-friendliness. This decision is by no means critical of integration. It states for the first time that the Basic Law not only provides permission, but even entails an obligation to pursue European integration. Anyone who takes a seat in the Bundestag does so within a Europeanized constitutional framework.

SPIEGEL: The author of the decision on the Lisbon Treaty obviously had an entirely different intention than what was understood by politicians and the general public. So nation-state policies in no way take precedence over European ones?

Di Fabio: Those are erroneous categories. The 1993 ruling on the Maastricht Treaty already addressed the danger of relinquishing the responsibilities of the Bundestag to Europe. (Editor's note: In that ruling, the court gave its blessing to the treaty, the founding document of the European Union, but it also noted that "democratic legitimation necessarily comes about through the feedback of the actions of the European institutions into the parliaments of the member states.") The decision on the Lisbon Treaty merely clarified where such key areas of responsibilities may lie. But we didn't say that one cannot transfer anything at all in these core areas. We merely stated that their substance has to remain under the control of the Bundestag and the democratic debate here in Germany.

SPIEGEL: But aren't you in effect equating democracy with the nation-state?

Di Fabio: One could say that the decision on the Lisbon Treaty has perhaps very strongly elucidated the perspective of the member state, the perspective of the constitutional identity. But at times European court decisions also underscore their perspective in a highly pronounced manner. It's not unusual for courts in such a new confederal system to strongly assert themselves -- at least apparently -- only to be somewhat more reserved the next time around.

SPIEGEL: Two steps forward, one step back.

Di Fabio: It may look that way. In a confederal system, in any case, there is no one at the very top. There is no one who makes authoritative decisions. Many members of the public, including many journalists, have the impression that Karlsruhe must have the final word because nothing is above Karlsruhe.

SPIEGEL: What is there really?

Di Fabio: There is the European Court of Justice in Luxembourg, and from that vantage point you could perhaps have the impression that Luxembourg has to be at the very top. But the upcoming accession of the EU to the European Convention on Human Rights also shifts the perspectives: Suddenly, at least in certain cases, the European Court of Human Rights (in Strasbourg) has even higher jurisdiction.

'No State Can Save the World on Its Own'

SPIEGEL: Is Karlsruhe losing power?

Di Fabio: Not in general and not in the sense of a zero-sum game. With the help of European integration the German Constitutional Court has in some ways become even more influential because its legal ideas now extend beyond borders. What's more, in certain constellations Karlsruhe lays claim to the last word, for example, when it comes to monitoring Europe's overstepping of competencies. This, I believe, is something that the European Court of Justice has also come to accept.

SPIEGEL: The president of the European Court of Justice in Luxembourg nonetheless recently said that he's not happy to hear that Karlsruhe wants to have the last word.

Di Fabio: I'm also unhappy to hear certain things, but I accept them.

SPIEGEL: How long can this really work, this coexistence of authorities to adjudicate in Europe?

Di Fabio: As long as we don't have a United States of Europe, we will continue to have a polity that has a certain network character.

SPIEGEL: Now, there are also plans in Berlin to take the last word away  from the court in Karlsruhe, for instance by introducing an amendment to the Basic Law that would remove the judges' authority on issues of European integration.

Di Fabio: That is a phoney debate. Indeed, there is no reason for such considerations. What the German government has now set in motion and agreed upon with its European partners should make such steps hardly necessary.

SPIEGEL: What if Berlin wanted to avoid future conflicts with Karlsruhe?

Di Fabio: I don't think anyone wants to remove this power of review from the Constitutional Court. It is part of the identity of a highly successful republic. Incidentally, certain aspects such as the principles of democracy and the rule of law are protected by the Basic Law's guarantee of perpetuity and are thus immutable.

SPIEGEL: Since the Basic Law according to the Karlsruhe interpretation may make it difficult to realize European unity, Berlin is already assessing plans to have the people vote on a new, Europe-friendly constitution.

Di Fabio: The people are, of course, free to abandon the Basic Law. All peoples are free to say that they no longer want to be independent -- that they would like to be a member state in a sovereign United States of Europe.

SPIEGEL: What would have to happen to pave the way for this decision by the public?

Di Fabio: We are talking here about an entirely theoretical question.

SPIEGEL: Even your president recently broached this topic in an interview.

Di Fabio: But only as something on the limit of the imaginable. One reason why this issue is totally theoretical is that there is a lack of practical will to establish such a political entity.

SPIEGEL: Why then are members of the German government considering replacing the Basic Law?

Di Fabio: Certainly not to clear the way for the next integration steps by removing the Constitutional Court as a veto player.

SPIEGEL: For which additional integration steps would a veto be expected from your colleagues?

Di Fabio: The court has already clarified where there is a sticking point. If financial guarantees were to become colossal or Germany were to be made liable against its will, then the judges would perhaps say: This can no longer conceivably be regarded as covered by the principal of democracy.

SPIEGEL: A transfer union wouldn't generally violate the Basic Law?

Di Fabio: The EU has always had transfer characteristics in the agricultural sector. It depends on what the national parliaments can responsibly support with their own individual decisions. If Germany subjects itself to a mechanism whereby European and intergovernmental organs have access to revenues and expenditures that have an effect on the budget, with no right of veto by the Bundestag, then we have a democratic problem.

SPIEGEL: Would euro bonds  be such a mechanism?

Di Fabio: In principle, yes, they probably would. But the extent to which this would be a democratically sound move by the Bundestag depends on the concrete form.

SPIEGEL: We have nation-state constitutions as a binding framework for European policy and to influence global financial markets. Can something like this continue to work?

Di Fabio: Just imagine that all member states had largely fulfilled the stability criteria, made their economies competitive and conceptually worked together much better: Would the EU have any problems at all today? An open, integrated state, which nonetheless remains sovereign and functioning, is an indispensable building block, even in an increasingly integrated Europe.

SPIEGEL: In such a union of states is it even possible to organize a satisfactory democratic legitimization?

Di Fabio: Yes, when both levels continue to function. This has been the message ever since the Maastricht decision. If the European level is lively, strong and functioning, but the nation-state level also remains functioning and autonomous, then it works.

SPIEGEL: Wouldn't it be easier to form a democratic United States of Europe with separation of powers?

Di Fabio: I think it is a mistake to pursue a United States of Europe model. There is no ideal solution on earth, nor is there one that dates back to the 19th century. The supposed universal remedy of a United States of Europe could cause even greater conflicts than the current union with its many weights and counterweights that allow for a balance.

SPIEGEL: But many of the problems are simply too big for nation-states.

Di Fabio: No state can save the world on its own. This requires effective international treaties. But what are agreements worth without strong, functioning constitutional states? Indeed, we need both notions at the same time. Without functioning states, there is no international order. Nonetheless, the European sovereign debt crisis has shown that the states have to do their homework. Over the long-term you can only act successfully on the international stage if you have things in order at home.

SPIEGEL: So Europe should continue on the same path?

Di Fabio: We can always scoff at the current construction, and it doesn't correspond with our old, clear patterns of order. But it is a security construction. We have come an incredibly long way with this in Europe -- and we have done so peacefully.

Interview conducted by Dietmar Hipp and Thomas Darnstädt; translated from the German by Paul Cohen