Decision by the German Constitutional Court on the Treaty of Lisbon (30 June 2009) Caption: On 30 June 2009, the German Constitutional Court delivers its verdict following an action brought by a group of complainants who accuse the Treaty of Lisbon of breaching the Basic Law by weakening the prerogatives of the German Parliament and infringing the principle of democracy. The Court’s decision states that the Treaty complies with the German Basic Law. But the accompanying law (Begleitgesetz) that governs the rights of participation of the Bundestag and the Bundesrat in European affairs is found to violate the Basic Law as it does not give the legislative bodies sufficient rights of participation. The judges rule that it has shortcomings and needs to be improved. Source: Bundesverfassungsgericht – BVerfG, 2 BvE 2/08 vom 30.6.2009, Absatz-Nr. (1 - 421), [ON-LINE]. [Karlsruhe]: Bundesverfassungsgericht, [01.10.2013]. http://www.bverfg.de/entscheidungen/es20090630_2bve000208.html. Copyright: All rights of reproduction, public communication, adaptation, distribution or dissemination via Internet, internal network or any other means are strictly reserved in all countries. The documents available on this Web site are the exclusive property of their authors or right holders. Requests for authorisation are to be addressed to the authors or right holders concerned. Further information may be obtained by referring to the legal notice and the terms and conditions of use regarding this site. URL: http://www.cvce.eu/obj/decision_by_the_german_constitutional_court_on_the_treaty_of_lisbon_30_june_2009- en-8facbcac-b236-47c8-9db3-e2199d825cfb.html Note: This document has undergone optical character recognition (OCR), so that full text search and copy/paste operations can be carried out. However, the result of the OCR process may vary depending on the quality of the original document. Publication date: 19/12/2013 1 / 75 19/12/2013 Page 1 sur 74 Entscheidungen Zitierung: BVerfG, 2 BvE 2/08 vom 30.6.2009, Absatz-Nr. (1 - 421), http://www.bverfg.de/entscheidungen/es20090630_2bve000208en.html Frei für den nicht gewerblichen Gebrauch. Kommerzielle Nutzung nur mit Zustimmung des Gerichts. Headnotes to the judgment of the Second Senate of 30 June 2009 - 2 BvE 2/08 - - 2 BvE 5/08 - - 2 BvR 1010/08 - - 2 BvR 1022/08 - - 2 BvR 1259/08 - - 2 BvR 182/09 - 1. Article 23 of the Basic Law grants powers to take part in and develop a European Union designed as an association of sovereign states ( Staatenverbund ). The concept of Verbund covers a close long-term association of states which remain sovereign, a treaty-based association which exercises public authority, but whose fundamental order is subject to the decision-making power of the Member States and in which the peoples, i.e. the citizens, of the Member States remain the subjects of democratic legitimation. 1. a) In so far as the Member States elaborate treaty law in such a way as to allow treaty amendment without a ratification procedure, whilst preserving the application of the principle of conferral, a special responsibility is incumbent on the legislative bodies, in addition to the Federal Government, within the context of participation which in Germany has to comply internally with the requirements under Article 23.1 of the Basic Law (responsibility for integration) and which may be invoked in any proceedings before the Federal Constitutional Court. 1. b) A law within the meaning of Article 23.1 second sentence of the Basic Law is not required, in so far as special bridging clauses are limited to subject areas which are already sufficiently defined by the Treaty of Lisbon. However, in such cases it is incumbent on the Bundestag and, in so far as legislative competences of the Länder are affected, the Bundesrat , to assert its responsibility for integration in another appropriate manner. 1. European unification on the basis of a treaty union of sovereign states may not be achieved in such a way that not sufficient space is left to the Member States for the political formation of economic, cultural and social living conditions. This applies in particular to areas which shape the citizens’ living conditions, in particular the private sphere of their own responsibility and of political and social security, protected by fundamental rights, as well as to political decisions that rely especially on cultural, historical and linguistic perceptions and which develop within public discourse in the party political and parliamentary sphere of public politics. 2. The Federal Constitutional Court examines whether legal instruments of the European institutions and bodies keep within the boundaries of the sovereign powers accorded to them by way of conferral (see BVerfGE 58, 1 <30-31>; 75, 223 <235, 242>; 89, 155 <188>: see the latter two concerning legal instruments transgressing the limits), whilst adhering to the principle of subsidiarity under Community and Union law (Article 5.2 ECT; Article 5.1 second sentence and 5.3 of the Treaty on European Union in the version of the Treaty of Lisbon < Lisbon TEU >). Furthermore, the Federal Constitutional Court reviews whether the inviolable core content of the constitutional identity of the Basic Law pursuant to Article 23.1 third sentence in conjunction with Article 79.3 of the Basic Law is respected (see BVerfGE 113, 273 <296>). The exercise of this review power, which is rooted in constitutional law, follows the principle of the Basic Law’s openness towards European Law ( Europarechtsfreundlichkeit ), and it therefore also does not contradict the principle of sincere cooperation (Article 4.3 Lisbon TEU); otherwise, with progressing integration, the fundamental political and constitutional structures of sovereign Member States, which are recognised by Article 4.2 first sentence Lisbon TEU, cannot be safeguarded in any other way. In this respect, the guarantee of national constitutional identity under constitutional and under Union law go hand in hand in the European legal area. 2 / 75 15/10/2013 19/12/2013 Page 2 sur 74 FEDERAL CONSTITUTIONAL COURT - 2 BvE 2/08 - - 2 BvE 5/08 - - 2 BvR 1010/08 - - 2 BvR 1022/08 - - 2 BvR 1259/08 - - 2 BvR 182/09 - Pronounced 30 June 2009 Herr Registrar of the Court Registry IN THE NAME OF THE PEOPLE In the proceedings I. on the application to find, in Organstreit proceedings, a) that the Act of 8 October 2008 on the Treaty of Lisbon of 13 December 2007 (Bundesgesetzblatt - BGBl> 2008 II page 1038) infringes Article 20.1 and 20.2, Article 23.1 and Article 79.3 of the Basic Law (Grundgesetz - GG) and violates the applicant’s rights under Article 38.1 of the Basic Law, b) that Article 1 number 1 and number 2 of the Act Amending the Basic Law (Articles 23, 45 and 93) ( Gesetz zur Änderung des Grundgesetzes<(i> <Artikel 23, 45 und 93>) of 8 October 2008 (Federal Law Gazette I page 1926) and Article 1 § 3.2, § 4.3 number 3 and § 4.6 as well as § 5 of the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters (Gesetz über die Ausweitung und Stärkung der Rechte des Bundestages und des Bundesrates in Angelegenheiten der Europäischen Union, Bundestag printed paper <Bundestags-Drucksache - BTDrucks> 16/8489) infringe Article 20.1 and 20.2, Article 23.1 and Article 79.3 of the Basic Law and violate the applicant’s rights under Article 38.1 of the Basic Law applicant: Dr. G..., - agents: 1. Prof. Dr. Dietrich Murswiek, 2. Prof. Dr. Wolf-Rüdiger Bub, Promenadeplatz 9, 80333 Munich - respondents: 1. German Bundestag, represented by its President, Platz der Republik 1, 11011 Berlin, - agent: Prof. Dr. Dr. h.c. Ingolf Pernice, Laehrstraße 17a, 14165 Berlin - 2. Federal Government, represented by the Federal Chancellor, Bundeskanzleramt, Willy-Brandt-Straße 1, 10557 Berlin, - agent: Prof. Dr. Dr. h.c. Christian Tomuschat, Odilostraße 25a, 13467 Berlin - and an application for an interlocutory injunction and an application for any other remedy 3 / 75 15/10/2013 19/12/2013 Page 3 sur 74 - 2 BvE 2/08 -, II. on the application to find, in Organstreit proceedings, that the Act of 8 October 2008 on the Treaty of Lisbon of 13 December 2007 (Federal Law Gazette 2008 II page 1038) violates the German Bundestag ’s rights as a legislative body and is therefore incompatible with the Basic Law applicant: DIE LINKE parliamentary group in the German Bundestag, represented by its chairmen Dr. Gregor Gysi, Member of the German Bundestag, and Oskar Lafontaine, Member of the German Bundestag, Platz der Republik 1, 11011 Berlin, - agent: Prof. Dr. Andreas Fisahn, Universität Bielefeld, Postfach 10 01 31, 33501 Bielefeld - respondent: German Bundestag, represented by its President, Platz der Republik 1, 11011 Berlin, - agent: Prof. Dr. Franz Mayer, Lettestraße 3, 10437 Berlin - and an application for an interlocutory injunction - 2 BvE 5/08 -, III. on the constitutional complaint brought by Dr. G..., - agents: 1. Prof. Dr. Dietrich Murswiek, 2. Prof. Dr. Wolf-Rüdiger Bub, Promenadeplatz 9, 80333 Munich - against a) the Act of 8 October 2008 on the Treaty of Lisbon of 13 December 2007 (Federal Law Gazette 2008 II page 1038), b) Article 1 number 1 and number 2 of the Act Amending the Basic Law (Articles 23, 45 and 93) of 8 October 2008 (Federal Law Gazette I page 1926), c) Article 1 § 3.2, § 4.3 number 3 and § 4.6 as well as § 5 of the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters (Bundestag printed paper 16/8489) and an application for an interlocutory injunction and an application for any other remedy - 2 BvR 1010/08 -, IV. on the constitutional complaint 4 / 75 15/10/2013 19/12/2013 Page 4 sur 74 brought by Prof.