SWP Comments 2009/C 15, August 2009, 8 Pages

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 responsibility 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 comprehensive 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. In these areas, question of whether or not the Maastricht the Court says, there must be preliminary convergence criterion relating to annual factual restrictions on not only the legal net government borrowing was already an transfer but also the actual exercise of encroachment into one of the protected sovereign powers. In this, the Court is going areas of sovereign state competence. The beyond the comprehensive scrutiny reserva- statements of the Karlsruhe judges are tion on transfers of competences that it has unclear on this point. The parliamentary

SWP Comments 15 August 2009

3 debate on the budget, “–including the ex- theless, these procedures provide hurdles in tent of public debt –” is, they say, a general the form of unanimous agreement by the debate on policy in the Bundestag and is EU Member States as well as, in most cases, vouched for by the fact that the right to the approval of the EP. adopt the budget and control its execution a) The graded procedure for simplified is a cornerstone of the principle of democ- revision of the Treaties laid down in racy. However, not every European or inter- Article 48(6) of the Treaty on European national obligation that has an effect on Union (TEU), as amended by the Treaty the budget necessarily endangers the viabil- of Lisbon, enables simplified revision of ity of the Bundestag as the legislature that is Part Three of the Treaty on the Function- responsible for approving the budget. That ing of the European Union (TFEU), i.e. being said, it cannot be disputed that the the provisions relating to “internal Maastricht criteria place tight fiscal limita- policies” such as the internal market, tions on the policy-making scope of Mem- fundamental freedoms, agriculture, ber States in the Eurozone: after all, that is justice and home affairs or employment the whole point and purpose of the con- and social policy. The Treaty stipulates vergence criteria. With high-court approval that this shall not increase the com- from Karlsruhe, a failure to comply with petences conferred on the EU. the borrowing limit can be legitimised on b) The general bridging clause in Article the grounds of protecting national budget 48(7) TEU and a special bridging clause sovereignty. This situation could become a for family-law measures in Article 81(3) political problem at European level, if TFEU enable a simplified procedure for compliance with or greater flexibility for switching from unanimous decision- the European Stability and Growth Pact is making to qualified-majority decision- put back up for discussion. A bomb has making in the Council as well as from been placed under monetary stability; all the special to the ordinary legislative we can hope is that other Member States (codecision) procedure. will not detonate it. c) In addition, the Lisbon Treaty confirms the existing flexibility (implied powers) clause, which is used around 30 times a Barriers to Simplified Adaptation of year: if the Treaty does not provide the the Treaty necessary powers to achieve a certain The Karlsruhe judges understand the trans- objective but “action by the Union should fer of sovereign powers to mean “any prove necessary, within the framework amendment of the texts that form the basis of the policies defined in the Treaties”, of European primary law”. Consequently, in then the Council, acting unanimously on future any adaptation – however small – of a proposal from the Commission and the European instruments will require the after obtaining the consent of the Euro- approval of the German parliament. In pean Parliament, can adopt the appro- addition to the standard Treaty revision priate measures. This so-called Vertrags- procedure, the new mechanisms of the abrundungsklausel (Treaty rounding-off simplified revision procedures, bridging clause) allows for a fine-tuning of the clauses and Treaty ‘rounding-off’ procedures Union’s powers on a strictly case-by-case would also require approval by the German basis. It explicitly rules out measures parliament in future. These simplified aimed at the harmonisation of Member revision procedures were introduced to States’ laws and regulations. So far, the avoid having to go through the lengthy clause has been used – often in combina- procedure of an Intergovernmental Confer- tion with other legal bases that are clear- ence for every adaptation to a Treaty in a ly defined in terms of competences – to Union of 27 and more Member States. Never- equip the EU with instruments that it

SWP Comments 15 August 2009

4 Graph Use of the Flexibility Clause 1971–2008

100 © Andreas Maurer 2009 90

0 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Source: Own calculation based on EUR-LEX, 7 July 2009; Search criterion: legal basis (=235/=308) + period (=year) + author (=Council)

needs in order to exercise the compe- responsibility for integration in the form of tences and tasks already transferred to it. an explicit approval on a legal basis estab- These include, for example, the creation lished by law. Under this system, every ab- of agencies, the agreement of action stention counts as a rejection. The already programmes and measures in relation to prepared agreement between the Bundestag agreements with third countries. and Federal Government is not sufficient to satisfy the Court. The Federal Constitutional Court has Accordingly, the requirement for parlia- expressly demanded that the prepared “Ex- mentary participation and assent applies tending Act” (BT-Drs. 16/8489) be adapted, not only to transfers of competences but in order that the Treaty of Lisbon can be also to changes to the EU decision-making definitively ratified in Germany. In so procedure. The immediate effects of the doing, the Court has thwarted the attempt judgment are limited. However, over the of the EU to create an appropriate balance longer term the judges’ line of argument in between the need for adaptation of primary particular could have consequences for law and the wish for equal participation by Germany’s European policy and its role in all members, in so far as it has rejected the the EU. procedure enacted by the Bundestag and Bundesrat to satisfy the requirement for national ratification. Consequently, the Long-term Effects on differentiated revision procedures are sim- European Policy plified only at European level; national The Constitutional Court calls for a redis- implementation will not follow this differ- tribution of weight between the executive entiation, since the Court demands that and legislature in Germany’s European Bundestag and Bundesrat exercise their policy, going beyond implementation of its

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5 judgment. The requirement for Bundestag vations and misgivings and forge European and Bundesrat to give their consent solutions. However, participation in the strengthens their participation and co- process of European integration remains a decision rights. Members of parliament constitutional mandate of German politics will be required to continually monitor and is not left to the “political discretion” the process of European integration and of the German constitutional bodies. This analyse European decisions in depth. obligation therefore also applies to the Fed- With its discernible desire to take the eral Constitutional Court, which must con- German Basic Law as its exclusive yardstick tinue in future to align its case-law with the for assessing the further dynamic of the openness to integration of the Basic Law. integration process, the Court has (witting- Full entitlement to review on the part of ly or unwittingly) made itself a political the Constitutional Court could also open player in the European policy cycle. In up new areas of conflict. To start with, there future, whenever there is a textual amend- would be the ongoing conflict, which has ment to the European instruments or even only been superficially resolved by this a disputed legislative procedure, both judgment, between the Constitutional Bundestag and Bundesrat will be tempted to Court and the European Court of Justice influence the way the Federal Government (ECJ) regarding decisions of last instance on negotiates in Brussels, by appealing to the the legality of European legislation. This Constitutional Court or threatening to do conflict will really come to a head if the so. With every EU directive, the Constitu- two courts hand down contradictory judg- tional Court can be asked whether it trans- ments on the legality of a European direc- gresses the threshold to the federal state tive in a specific case; if that happens, the and to the waiver of national sovereignty Federal Government, Bundestag and Bundes- and violates the inviolable core content of rat will be faced with the choice of having the “constitutional identity”. This increases to follow either the ECJ or the Federal Con- the danger that European policy projects stitutional Court. will become a weapon in internal political As the Karlsruhe judges see it, the yard- disputes and that European issues will be stick for compatibility of the Lisbon Treaty exploited in tactical power struggles and with the Basic Law remains the chain of internal political horse-trading. The key legitimacy provided by the nation states. In question in the long run, therefore, will be: the Court’s view, legitimacy via the directly how strong is the fundamental cross-party elected European Parliament must take a consensus on European policy in Germany? back seat, due to the lack of electoral equal- Nonetheless, through its judgment the ity in the European elections. This line of Constitutional Court has narrowed the argument corresponds to the state-centred scope of the Federal Government to actively notion of democracy under 19th and 20th shape European policy in Brussels, while century German constitutional law, a increasing the push towards a reactive notion that seems anachronistic when set policy that puts the brakes on European against the multi-level and multi-actor integration. The Court’s message on inte- system of today’s EU. gration policy will have ramifications for However, the clear marginalisation, in the basic assumptions underpinning Ger- the Karlsruhe judgment, of the European many’s European policy and Germany’s Parliament’s role with respect to smaller position in Brussels. In inter-ministerial Member States should arouse suspicion. If votes, the reference to Germany’s traditional the constitutional body of a big Member role as a driving force behind integration State focuses in this one-sided way on the and a broker of European compromises will chain of legitimacy of nation states and the no longer be enough to persuade individual principle of “the majority rule which is ministries to put aside their specific reser- established by an election”, this will have

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6 the effect of strengthening trends towards votes, which would significantly enhance ‘renationalisation’. Smaller Member States the smaller states’ ‘contribution towards may ask themselves why, in an archetypal success’ at the expense of Germany, France intergovernmental EU body like the Coun- and the UK. cil of Ministers, the principle under inter- Constitutional Court judgment notwith- national law of the equality of states has to standing, in a European Union whose Mem- be breached at all. For according to the ber States are drifting increasingly apart, Karlsruhe judgment, the double majority such a scenario seems scarcely realistic at principle for votes in the Council of present. Ministers, to be introduced by the Treaty of Lisbon, whereby a majority of the popula- tion will need to be taken into account 2. Germany’s European policy acting as a when reaching decisions, cannot compen- brake sate for an absence of the precept of elec- Given the Constitutional Court’s mistrust toral equality in the European Parliament. of the EU’s “considerable degree of exces- The end result of this will be a possible sive federalisation”, the judgment could be questioning of the double majority proce- used to slam the breaks on German Euro- dure agreed upon by Germany in the Con- pean policy initiatives. The primary interest stitutional Convention, the Constitutional of Germany’s European policy would then Treaty and ultimately – in tough negotia- consist of countering further steps of inte- tions with Poland – in the Lisbon Treaty. gration capable of strengthening the EU’s In the long term, the judgment gives rise ability to act independently or even engage to four (hypothetical) options with respect in autonomous decision-making. This to Germany’s European policy identity: would signal a paradigm shift in Germany’s European policy identity. Germany would lose its role as a driving force behind Euro- 1. Qualitative leap towards a pean integration and a mediator at the European federal state heart of a unified continent and instead The Court does not rule out the creation of become a giant force of obstruction. Given a European federal state. However, it ties the European policy consensus that still this step in with the preconditions formu- exists in Germany, the expectations of lated by the Basic Law, namely the approval Germany’s European partners as to its role of the German people and the guarantee of in the EU, as well as Germany’s rational democratic structures and fundamental national interest in the continuation of the rights. Consequently, such en enterprise EU, such a fundamental political change is would require a nationwide referendum inconceivable for the time being. as well as a reform of the EU institutions guaranteeing democratic electoral equality. A reform of the respective voting weights of 3. Re-engage with core sovereignty the EP and Council geared strictly towards In its judgment, the Constitutional Court the Karlsruhe judges’ interpretation of the spelled out policy areas that constitute the principle of democracy would have to aim core of nation-state sovereignty. In this con- at achieving a much more proportional nection, it did not rule out further steps of distribution of EP seats than is currently integration but rather claimed the right to the case. However, as a counterbalance to review and assess these steps itself. If the this, voting weights in the Council of Minis- Court wishes to become more of a political ters would have to be based more on the player, then the other constitutional bodies principle of equality of states. The double should take it at its word in exercising their majority principle would then be elimi- responsibility for integration. Over the nated and replaced by a system of weighted coming years, the need for European policy

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7 action could arise in precisely those areas that the Constitutional Court makes subject to its scrutiny reservation. However, the risk of initiatives falling at the Karlsruhe hurdle would inevitably accompany such a policy.

4. Look for new ways forward The Court’s line of argument, according to which European integration is to be under- stood primarily as a process of intergovernmental agreements, could foster an even more executive-heavy approach to Euro- pean policy. Whenever cross-border action

These Comments reflect EU’s criticised democratic deficit. Although solely the authors’ views. the foundations of the EU under the Treaties

SWP are much more in keeping with the demo- Stiftung Wissenschaft und cratic principles of the Basic Law, the Karls- Politik German Institute for ruhe judgment could lead to even greater International and reliance on purely intergovernmental Security Affairs arrangements. Specifically, the danger Ludwigkirchplatz 3−4 posed by the Constitutional Court’s judg- 10719 Berlin ment is that European nation states will Telephone +49 30 880 07-0 Fax +49 30 880 07-100 feel encouraged to test out new forms of www.swp-berlin.org intergovernmental cooperation (with or [email protected] without Germany), outside the framework ISSN 1861-1761 of the EU.

Translation by Linguanet sprl, Brussels The key question, which the decision of the

(English version of Federal Constitutional Court still does not SWP-Aktuell 41/09) resolve, remains that of the relationship between the European Union, a construct “in analogy to a state”, and Europe’s national constitutional states. An attempt to address this question using traditional German constitutional law will fail to do justice to the Basic Law’s normative openness towards Europe, the current level of EU integration, citizens’ expectations of the possibilities and effectiveness of modern and increasingly integrated welfare states, or the international challenges of a global- ising world. These political benchmarks must take precedence over a purely legal assessment of the dynamics of the integration process.

SWP Comments 15 August 2009