spotlight europe # 2009/08 – September 2009 Europe begins at home

Joachim Fritz-Vannahme Bertelsmann Stiftung, [email protected]

The European policy of the forthcoming German government is bound to change, partly as a result of the new institutional framework. On the one hand there is the ruling of the German Constitutional Court. And on the other hand it will become necessary to play by the EU’s new rules of the game. Can Germany continue to support the trend to more European in- tegration and, more importantly, will it have a desire to do so?

Whoever becomes the next Chancellor of I Germany will have to get used to new rules of the game in the area of European policy. They have been determined in two The Ruling in Karlsruhe – different ways. On the one hand the ruling Criticism and Praise of the German Constitutional Court on the Treaty of Lisbon redistributes the tasks The Karlsruhe ruling on 30 June 2009 led assigned to various German institutions. to fierce disputes in Germany and else- # 2009/08 And on the other hand the Treaty itself–if, where among those who sought to that is, the Irish give their assent to it on elucidate its meaning. Writing in the 02 October, for otherwise there will be a weekly newspaper “Die Zeit,” former need for crisis management for years to foreign minister Joschka Fischer criticized come–will change the distribution of the fact that it placed “national power in Brussels, partly on account of the constraints” on European integration. creation of new posts ranging from the “Karlsruhe simply does not like the EU’s permanent President of the European progress towards deeper integration,” Council to the EU foreign policy represen- writes Fischer. The Second Senate of the tative, and, more importantly, on account Constitutional Court “had attacked the of the enhancement of the rights of EU phantasmagoric vision of a European parliaments and citizens. ‘federal state’ merely in order to lend spotlight europe

Germans were never serious about Europe after all.”

In the Frankfurter Allgemeine Zeitung Carl Otto Lenz, for many years a member of parliament and subsequently advocate general at the European Court of Justice in Luxembourg, criticized both the letter and the spirit of the Karlsruhe ruling. “The Basic Law never employs the term “sovereign,” whereas the German Consti- tutional Court uses it thirty-three times.” Lenz is also of the opinion that the highest German court is arrogating to itself a political role: “The current state of affairs is deemed to be the end of the chapter, the development of the law is taken out of the hands of the elected bodies, in the name of democracy. The message is thus far and no farther.”

To be sure, the Karlsruhe ruling was also greeted with approval. On the one hand, of Page 2 course, because the court declared that ratifying the Treaty of Lisbon was conso- nant with the constitution. And on the other hand because, as Herbert Prantl pointed out in the Süddeutsche Zeitung, this was a “great moment for Europe.” “This ruling does not seek to find fault with Europe, it does not harp on about its deficits, but spells out how Europe can be improved in a positive way.” Prantl Europe begins at home home at begins Europe praised the outcome: “The members of parliament will have to think far more about Europe than they have in the past. legitimacy to its view that in future Euro- In other words, Europe will become a pean integration policy would not be domestic policy issue. (…) The ruling formulated in Berlin by democratically condemns the German Parliament to more legitimated bodies, that is, the German democracy.” # 2009/08 government, the German Parliament and the Federal Council, but by the court in More democracy is also what Burkhard Karlsruhe.” Hirsch, a former deputy speaker of the German Parliament, expects to see. “If the In the Süddeutsche Zeitung Alfred court makes certain that the parliamentary Grosser, the doyen of French experts on majority and the German government have Germany, commented: “The German Con- to respect the Basic Law, then that is not stitutional Court exists and issues its democracy shaped by the judiciary, but rulings in an atmosphere in which it fears urgently needed protection for the consti- that it will have to defer to the European tution,” Hirsch writes in the Frankfurter Court of Justice.” Without mentioning any Allgemeine Zeitung. “It is also not true names, he cites French eurosceptics who that a government’s “hands are bound” if spotlight europe can now say with a vengeance: “The

it is tied to the decisions of the parliament. becomes more European, or Europe more I thought that a parliamentary government German. was always bound to abide by the decisions of the parliament. That is what it Be that as it may, every Chancellor will says in the Basic Law.” have to bear in mind another consequence of the Karlsruhe ruling. The hitherto latent II conflict between the German Constitu- tional Court and the European Court of Justice can become a crisis and shift to the New Distribution of level of open hostility at any time. Thomas Power in Germany’s Oppermann, an expert on European law in Tübingen, believes that “a war” between European Policy Karlsruhe and Luxembourg is in the offing. Writing in the Frankfurter In future the German Parliament and the Allgemeine Zeitung his Berlin colleague Federal Council will be in a position Christian Calliess voiced the opinion that (according to the Karlsruhe court it will in the ruling meant that Brussels and Berlin fact be their duty) to determine the way were already “under the complete supervi- the German government votes in Brussels sion of Karlsruhe.” “It would cover not when the issue is an amendment to an EU only the EU and the European Court of treaty, the voting regulations, or an exten- Justice, but the whole of Germany’s future sion of responsibilities. In essence the new European policy. There are good reasons law makes use of the so-called bridging why the German Constitutional Court has Page 3 clause in the Treaty of Lisbon. The Euro- asked the German Parliament to assume pean Council, that is, the body which responsibility for integration, but in fact represents the 27 EU governments, can this would be largely a non-event, for the decide unanimously that henceforth the upshot would be a monopoly in the hands majority principle will be used in certain of Karlsruhe.” policy areas. In order to give its assent to this procedure the German government will in future need to secure the approval III of the Bundestag, and on top of this, where state rights are affected, of the Bundesrat Europe begins at home home at begins Europe (Federal Council). On the Way to a republic

This is only an (admittedly central) exam- run by judges? ple of what in future awaits every Chancel- Inasmuch as the judges of the Constitu- lor on the European level. The new rules of tional Court give themselves the right to the game as stipulated by Karlsruhe will at have the final word in all questions any rate have two consequences. On the pertaining to the EU, they fit rather neatly # 2009/08 one hand the German government will find into the role which former constitutional European policy (more) complicated. On judge and German president Roman the other hand, debates in the Bundestag Herzog advocated in an essay a year ago. and the Bundesrat will be Europeanized. His motto is “Stop the European Court of This will continue to be the case as long as Justice.” And for this purpose “the estab- the European Union is neither a federal lishment of an independent court for state nor a confederation, but a political competence questions over which the ECJ entity of a unique kind. It remains to be has no jurisdiction is urgently needed.” seen what the participants will make of all This highest of all courts is now being this, whether efficiency and transparency created in Karlsruhe as a result of its will suffer, whether the democratic debate comprehensive control proviso. For many will become more passionate and to the reasons such a proviso seems to be rather spotlight europe point, and whether, indeed, Germany

questionable, and not all of them are The forthcoming German government must connected with Europe. be prepared for the fact that such a conflict will occur in the very near future. Martin Nettesheim, the Tübingen expert Two important cases which have a bearing on constitutional law, quite rightly on European law and European policy–EU believes that there is a claim to absolute data retention and the Honeywell/Mangold validity at work here “which contradicts dispute–are due to be dealt with shortly by the constitutional notion of good compet- the highest German court. The rulings will ing arguments.” Robert Leicht believes demonstrate Karlsruhe’s view of the limits that the explanation of the ruling signifies of the ECJ’s powers. a fundamental change of direction which reaches out far beyond the intellectual IV confines of the court. The hard centre of the Karlsruhe message as Leicht sees it is “We want a German Europe–at least for all Redefining sovereignty the forthcoming stages in its develop- Sovereignty, borders, identity–these key ment.” “For everything else there will be a words in the explanation of the Karlsruhe German veto, which in practice we ruling are actually concepts of states and ourselves can overcome only by adopting a nations in the 19th and 20th centuries new constitution.” when Europe still ruled half of the world. The judges of the German Constitutional However, until the German people decide Court write, speak and think in terms of in favour of the revolutionary adoption of a these concepts in an innocent kind of way, Page 4 new constitution, the German judges have and do not for a moment think about the it in their power to defuse the looming fact that the individual states of Europe democratic and perhaps even European can only safeguard and defend their crises. To this end the judges, before self-determination and sovereignty in the issuing a ruling on European questions maelstrom of the 21st century by acting would merely ask for a prior opinion from together, that is, in European terms. the European Court of Justice in the frame- Brussels is not a threat; it is the saviour of work of a reference for a preliminary all that remains of the fantasy idea of ruling. Other high and supreme courts, “sovereignty.” Thus it was quite right to including German ones, have long since Europe begins at home home at begins Europe

say that the judges had a romantic availed themselves of this possibility. approach to reality.

“Sovereignty and Furthermore, sovereignty and democracy democracy are not are certainly not the inseparable twins which the Karlsruhe ruling makes them inseparable twins.” out to be. Tsarist Russia and the French

# 2009/08 and German empires wished to dazzle The Luxembourg arguments will have be others as sovereign states in the 19th- considered if an open confrontation with century concert of powers, but certainly far-reaching political consequences is to did not want to become democratic in the be avoided. But European law expert process. Calliess is sceptical whether the Karlsruhe

judges are still prepared to do this in view The explanation of the ruling of the of the fact that the ruling on the Treaty of Constitutional Court states correctly that Lisbon “does not mention ‘the cooperative “Institutions and procedures will also be relationship with the ECJ’ emphasized by reformed by the Treaty of Lisbon.” The the Maastricht ruling, which is certainly European Parliament will have more not accidental.” rights; there will be the newly created

office of a permanent President of the spotlight europe

European Council; the “High Representa- Thus for a long time to come the Union tive of the Union for Foreign Affairs and will clearly continue to be an entity which Security Policy” will combine in one cannot be described with the help of terms person the tasks (and jobs) of the EU such as confederation, federal state or Commission and the High Representative nation-state. The reformed EU will (who is attached to the Council of Minis- certainly be more political and more ters). In the Council voting on the basis of visible. Some fear that it will also be more qualified majorities will become the rule, dominant. And for this reason it will more and those who no longer wish to be than ever become a force to be reckoned members can leave the EU. Eurojust and with which politicians in EU capitals will Europol will receive new rights in the area utilize, but also fear. of criminal prosecution. And the treaty will enable EU citizens to approach The heads of state and government already Brussels directly with the help of a had a foretaste of this in the summer. The qualified petition. Council’s attempt to secure a second

In short, here again the forthcoming German government will have to get used to new rules. Such innovations may actually seem less Page 5 dramatic than the ruling of the Constitutional Court, especially since every minister and every Chancellor will in fact be dealing with familiar institutions, the Parliament, the Commission, and the Europe begins at home home at begins Europe Council. Furthermore, in the course of the transition from the (abortive) constitu- tional treaty to the Treaty of Lisbon all the symbols such as # 2009/08 the anthem, flag and motto which would have given the European Union the flavour of a federal state (at least that is how the British and Dutch saw it, who clamoured to have them removed) were expunged from the text. spotlight europe

period of office for the President of the semester under the Spanish presidency of Commission, José Manuel Barroso, was the Council the EU will decide to continue unsuccessful because it did not receive the with the Lisbon process, and with regard assent of the newly elected European to the labour market, growth, the knowl- Parliament. In this a political opposition edge society and the social community group consisting of Socialists, Liberals, embark on a (hopefully) ambitious social Greens and Ultra-leftists played a role, as sustainability project. Next year the did the legal question of whether the next debate on the framework budget for 2013 President of the Commission, after his to 2020 will start to heat up. On what appointment by the Council, should be should the EU spend its money in order to elected by the Parliament on the basis of a ensure its survival in the future, how simple majority (which is the provision much should it spend, and who should get contained in the Treaty of Nice) or an it? Whatever happens, the EU sustainabil- absolute majority (which is the provision ity strategy will certainly have to be contained in the Treaty of Lisbon). revised.

V So there is no dearth of topics when it comes to improving the EU as it competes with other centres of power in the world. What is on the agenda There are also plenty of topics for the in Brussels? Commission in Brussels to get its teeth into, since it will have to come up with The new European Parliament has been ideas for these debates and decisions. Page 6 elected and has got down to work. It is a There are also plenty of topics for the moot point whether the new President of European Parliament, which in the recent the Commission should be chosen in the past has demonstrated, for example, with autumn on the basis of the old treaties or regard to the Reach chemical substances whether the EU should wait until the directive, that it is capable of finding solu- Treaty of Lisbon can enter into force after tions to difficult questions. Finally, there the Irish referendum and the completion of is plenty of work for the forthcoming the German, Czech and Polish ratification President of the European Council who in procedures. all these areas is supposed to mediate and broker compromises between the 27 Europe begins at home home at begins Europe This would mean that for all new appoint- governments. ments there would be a waiting period until the year 2010, an interim interval And there is a plethora of tasks waiting for which in the world economic crisis is a the next German government, for the luxury Europe simply cannot afford. On largest economy in the EU, whether it top of this the EU in the immediate future likes it or not, exercises a decisive faces a series of important debates and influence on the way things happen. When # 2009/08 decisions. At the end of September the it comes to the climate-friendly automotive G 20 group is meeting in Pittsburgh in industry of the future, to infrastructure or order to create a stable and sensible budgetary issues, people will look not only framework for banks and the finance towards Brussels, but also to Berlin. industry. The results will subsequently have to be incorporated into European law. In a paradoxical kind of way the increased integration introduced by the Treaty of In December decisions will be made in Lisbon will change nothing. The fact that Copenhagen on global climate policy and the EU, after two decades of institutional the continuation of the so-called Kyoto debates, has finally and for the foreseeable process. In this area the EU believes that future attained to an internal balance is it has a leading role to play. In the first the precise reason why content-specific spotlight europe

dossiers and what Barroso has called the personnel for this transformational “Europe of results” have now moved into challenge? In the parliaments at any rate the limelight. This is a state of affairs to the tone nowadays is set by the domestic which, and in the light of the Karlsruhe policy budget specialists and legal experts. ruling, not only the German government Foreign policy experts are few and far be- will have to adapt, but also the German tween in all of the parties, which in fact Parliament and the Federal Council. There attach little importance to preparing their will be a completely unwonted and up-and-coming members to deal with unfamiliar Europeanization of German European or even global challenges. If a politics. To be sure, not in the way young politician wishes to get ahead, it is envisaged by the euphoric individuals who most unlikely that he will become a used to greet every step towards greater European affairs specialist. It remains to integration as the beginning of the end of be seen what consequences this will have the nation-state. In the enlarged EU this in the immediate future for the European- species started to become rather rare quite ized work in both chambers. a long time ago. In 2006 former Belgian Prime Minister Guy Verhofstadt was the “Europe of results is once last prominent politician to give enthusi- astic support to the idea of “The United again in the limelight.” States of Europe” (the title of his book). He In the past a quite different personnel remained a voice crying in the wilderness debate used to flare up at the beginning of to whom few people were prepared to every new coalition in Germany. Does the listen. government need a powerful Minister for Page 7 Europe in the Chancellor’s Office? A What we shall see is a Europeanization of sensible question, and a head-on attack on German politics from within, that is, a the Ministry for Foreign Affairs and its Europeanization of German domestic incumbent, the Vice-Chancellor and policy in regard to material decisions in Minister for Foreign Affairs. In the final very different areas ranging from analysis every Chancellor since Helmut agriculture to the environment and from Kohl has preferred to leave the question foreign policy to justice. The parliaments unanswered for the sake of peace and can no longer avoid all this by consigning quiet. However, it should be asked and the issues concerned to a European scrutinized once again after the elections. Europe begins at home home at begins Europe

committee. In factual terms the answer after the Karlsruhe ruling and in the era of the Thus the debates will become more Treaty of Lisbon is obvious. If German controversial, which is not a bad thing. But politics is going to become Europeanized does that mean they will be on a higher in such a far-reaching way, then it needs a level? Will they explain Europe in a more Minister for Europe even if it has been the comprehensible and appropriate manner

# 2009/08 German custom to assign greater impor- than on so many occasions in the past? tance to coalition logic than to functional And does it mean that German politicians logic. will immediately be more European? Hitherto German parties and German VI governments concurred that Europe is in the national interest, indeed, that Germany’s national interest and Europe European personnel are one. Doubts about this have arisen as a required in Germany result of the Karlsruhe ruling. Alfred Grosser is sceptical, and so is the British We should perhaps ask the question Liberal and MEP Andrew Duff. “One can differently. Do the parties have the right only imagine how Angela Merkel will take spotlight europe

to being hobbled in the European Council ing which has now begun. It would have to by her judges and MPs back home.” be paid by Germany and the European However, that would be a high price for Union, and would be to the detriment of the Europeanization of German policymak- both of them.

For Further Reading:

Andrew Duff: Lisbon’s high-wire act moves to Germany. Financial Times, 26.08.2009

Joschka Fischer: Ein nationaler Riegel. Die Zeit 29/2009, p. 3

Alfred Grosser: Deutschland auf dem Sonderweg. Süddeutsche Zeitung, 11.07.2009, p. 2

Roman Herzog/Luder Gerken: Stoppt den Europäischen Gerichtshof. Frankfurter Allgemeine Zeitung, 08.09.2008, p. 8

Burkhard Hirsch: Das unentziehbare Recht des Verfassungsgerichts. Frankfurter Allgemeine Zeitung, 27.08.2009, p. 34

Robert Leicht: Nur noch ein deutsches Europa. Der Tagesspiegel, 06.07.2009

Carl Otto Lenz: Ausbrechender Rechtsakt. Frankfurter Allgemeine Zeitung, 08.08.2009, p. 7

Petra Pinzler: Wo geht es hier zum Europaminister?, Die Zeit, 30. Juli 2009, Nr. 31

Page 8 Heribert Prantl: Europäische Sternstunde. Süddeutsche Zeitung, 01.07.2009, p. 4

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