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Introduction Stiftung Wissenschaft und Politik German Institute for International and Security Affairs German Brakes on Integration Consequences and Dangers of the Federal Constitutional Court Judgment for Germany and the EU SWP Comments Peter Becker / Andreas Maurer In its judgment of 30 June 2009, the German Federal Constitutional Court (Bundes- verfassungsgericht), based in Karlsruhe, coupled its endorsement of the Treaty of Lisbon with the demand that the rights of the Bundestag and Bundesrat to participate in the further development of the European integration process be strengthened. According to the Court, any simplified procedure for amending or adapting the Lisbon Treaty requires a statutory provision governing the rights of participation. The Court used its judgment to fundamentally redefine the existing political and legal boundaries of the European integration process in Germany, by specifying the areas in which the national legislature has inviolable sovereignty of action. In so doing, the Court limits the respon- sibility of the Bundestag and Bundesrat on European integration policy to monitoring the European policy decisions of the executive and places the focus of parliamentary involvement in European policy on taking qualitative steps of integration. The Karlsruhe judges’ assessment of the EU as an “association of states” (Staaten- dynamics of primary and secondary EU law verbund), whose legal order derives from is based exclusively on the standards and those states. requirements of the German Basic Law. The more closely integrated Europe becomes, the more heavily the Basic Law weighs in Basic Finding: An Undemocratic EU Federal Constitutional Court decisions. In Central to the Lisbon Treaty judgment is its Lisbon judgment, the Court does not the principle of democracy. In particular, question the openness of the Basic Law to the Court sees the transfer of arguably too integration; however, it does restrict the many or inadequately defined competences boundaries afforded to integration by the to the EU Staatenverbund as potentially fundamental rights and principles of weakening the democratic principle. In democracy enshrined in the Basic Law. In their earlier judgment on the Maastricht this respect, the Court’s decision is a seam- Treaty, the Court’s judges declined to call less continuation of the 1993 Maastricht the EU a democratic form of government, Treaty judgment and continues to class the on the grounds that it lacked the “essential Peter Becker is researcher at SWP’s European Integration Division SWP Comments 15 Dr. Andreas Maurer is Head of SWP’s EU External Relations Division August 2009 1 prerequisites” for this status. Now in the democracy (European Citizens’ Initiative) or Lisbon judgment, the Court goes a step the involvement of national parliaments in further. It recognises the extensive reforms the European legislative process – as suit- that have taken place since 1993 towards a able compensation for “the majority rule formal, institutional democratisation of the which is established by an election”. Union as evidence of a clear delimitation of the EU’s development. The democratic deficits of the European Union, it claims, Short-term Consequences have led to a considerable degree of ex- The court makes it clear that the principle cessive federalisation, which cannot be of conferral of enumerative empowerments compensated even by the new forms of continues to apply and that the EU only participative democracy introduced by the enjoys competences transferred to it by the Lisbon Treaty. Member States, which remain sovereign. In the Court’s view, the European Parlia- However, although it seems positive at ment (EP), despite being strengthened, will first glance, this overall judgment only not be democratically legitimised unless it relates to the framework of competences is elected on the basis of democratic equal- that the Lisbon Treaty codifies at the time ity. The EP does, it says, convey indepen- of its entry into force. It explicitly does not dent, albeit only “additional”, democratic cover any competences outside this frame- legitimisation, which complements and work which are developed through applica- carries “the legitimisation provided by tion of various amendment clauses pro- national parliaments and governments”. vided in the Treaty. However, because the EP is not elected on In this connection, the Court announces the basis of “equal contribution towards that in future it will always review whether success”, the principle of democracy is not the boundary at which the nation-state fulfilled. The EP, it claims, is “not a body sovereignty or the threshold to the federal of representation of a sovereign European statehood of the European Union is under- people”, which is made clear by the fact mined is being transgressed. In so doing, “that it, as the representation of the peoples the judges do not in principle rule out the in their respectively assigned national con- step of Germany entering a European tingents of Members, is not laid out as a federal state. However, they make it con- body of representation of the citizens of the ditional upon the German people voting in Union as an undistinguished unity accord- favour of such a break and the democratic ing to the principle of electoral equality”. requirements of the Basic Law and the Therefore, even after the entry into force of protection of fundamental rights being the Lisbon Treaty, the Union will lack “a guaranteed. The Karlsruhe judges see the political decision-making body which has boundary of nation-state sovereignty being come into being by equal election of all reached at any point when, as the result of citizens of the Union and which is able to implementation of an amendment to the uniformly represent the will of the people.” Treaty, “the Member States do not retain Heedless of the fact that the Lisbon sufficient space for the political formation Treaty at no point attempts to constitute a of the economic, cultural and social circum- unified European people, this line of argu- stances of life”. This applies particularly to ment forms the core of the judgment and fields of policy “which shape the citizens’ shapes the rest of the Court’s statements. circumstances of life, in particular the For example, the Karlsruhe judges do not private space of their own responsibility consider the additional forms of legitimi- and of political and social security, which is sation introduced by the Treaty of Lisbon – protected by the fundamental rights, and to the double-qualified majority in Council political decisions that particularly depend votes, the elements of associative and direct on previous understanding as regards cul- SWP Comments 15 August 2009 2 ture, history and language and which un- demanded. What it is claiming for itself fold in discourses in the space of a political here is the role of a potential ‘brake on public that is organised by party politics integration’, one that is legally actionable and Parliament”. at any time. In terms of European policy practice, the Federal Constitutional Court’s listing of Brakes on Integration and Com- protected core areas of nation-state com- prehensive Scrutiny Reservation petence throws up some weighty questions. This line of argument freezes indefinitely The Court is hampering practical implemen- the framework of competences and action tation of the European “integration pro- contained in the Lisbon Treaty. In practical gramme”, even in those policy fields that terms, it means that every time the EU have been communitised under the Lisbon decides to further extend the integration Treaty. Large-scale integration projects, process the Federal Constitutional Court such as the development of a European will need to clarify whether the boundary criminal code or the ideas – long-discussed of national-state sovereignty has been in political circles – of establishing a Euro- breached. Every political response formu- pean army, creating a European social insur- lated by consensus between all Member ance system or introducing separate Euro- States with the aim of keeping the EU viable pean tax-levying powers, will be put on hold. in future runs the risk of being challenged In the Court’s view, the integration of all as an inadmissible “transgression of the these areas represents such a fundamental boundary”. In this way, the Court is extend- decision that it must be preceded by an ing the core line of argument it has been expression of the will of the German people. formulating since 1974 beyond the protec- In practice, this requirement of a referen- tion of fundamental rights, and is hence- dum covers more than those future reforms forth reserving the power to review itself of the Treaty that are classed, following all of the provisions codified in the Lisbon review by the Constitutional Court, as Treaty which involve supplementing or qualitative steps towards integration. It simplified revision of the Treaty founda- would even apply to a new Treaty compro- tions. It also specifies the preserves of state mise that was much less radical than what sovereignty and democratic autonomy for a German Federal Government, during which it wishes to perform a supervisory negotiations, had told its EU partners function: citizenship issues, military and would require a referendum. This uncer- police monopoly on the use of force, sub- tainty will undoubtedly hamper ratifica- stantive and formal criminal law, funda- tion of any Treaty amendments right across mental fiscal decisions on revenue and Europe. Above all, however, it questions the public expenditure (including external autonomy of the Bundestag, Bundesrat and financing and in particular with respect to the Federal Government in exercising their public expenditure motivated by social- responsibility for integration. policy considerations), decisions on the Moreover, the statement by the Karlsruhe shaping of circumstances of life in a social judges that public external financing is one state and issues relating to family law, the of the elementary domains of democratic school and education system and dealings sovereignty for EU Member States raises the with religious communities.

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