Entangled Alliances

photo credit: Gernot Poetsch

Not too much closer union

In a wide-ranging and fascinating judgement, the highly activist German Constitutional Court has ruled that the Treaty of Lisbon is compatible with its Basic Law. There are, however, certain provisos that significantly affect the force of some of the parts of the Treaty that could lead to deeper integration without an amending treaty. It also has a lot to say on the future scope of European integration.

The press release is certainly worth reading in full, and it’s only seven pages if you copy and paste into Word – useful for highlighting. If you have time to read the judgement in full it’s more like 119 pages, but I think for those geeks of European integration and judicial philosophy out there it will be well worth a look.

I was going to wait to comment on this before I’d seen what the highly-recommended German Law Journal had to say about it (its discussion of a 2006 ruling is a great example). Then I noticed this evening that Nosemonkey had come out with some very interesting analysis into the ruling, and thought I’d try and get my initial thoughts down before seeing what any more people had to say on the matter.

As with many decisions it hands down, Germany’s Constitutional Court (or Bundesverfassungsgericht) did not pull any punches or avoid the opportunity to delve into areas of deep political and philosophical debate.

On a very simplistic level, the most important thing to point out is that the court upheld the compatibility of the Lisbon Treaty with Germany’s highest law, its Grundgesetz, or Basic Law*. However, in striking down a law on the participation of the Bundestag and Bundesrat in the EU post-Lisbon, it  made several highly significant rulings, both on the interpretation of the Treaty required in order to maintain this compatibility, and on the direction and endpoint of European integration. A fuller summary of its ruling is below, but essentially, it argued that any changes to Treaties (which, under Lisbon, could in certain circumstances take place without another inter-governmental conference) must be approved by the German Bundestag (and on occasions the Bundesrat too – the upper house), rather than simply a decision of the government.

Some of its strongest rulings came on crime and justice cooperation. It ruled that the crime and justice competences must be interpreted “strictly – on no account extensively -, and their use requires particular justification“. Additionally, where Lisbon envisages a fairly broad power for the Council to extend the list of serious crimes which would come under the EU’s competence, addition to this list would require primary legislation in Germany. The German Basic Law, the court ruled, does not permit a “Kompetenz-Kompetenz”. That is, it does not permit “the transfer of competence to decide on its own competence”.

European integration: obligatory for the German government, but tightly restricted

The Constitutional Court powerfully states that “The constitutional mandate to realise a united Europe which follows from Article 23.1 of the Basic Law and its Preamble means with regard to the German constitutional bodies that participation in European integration is not left to their political discretion.”

Germany is obligated to participate in European integration under its Basic Law. However, the Court significantly restricts what it means by participation in European integration:

European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life… This concerns in particular the administration of criminal law, the civil and the military monopoly on the use of force, fundamental fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy and important decisions on cultural issues such as the school and education system, the provisions governing the media, and dealing with religious communities.

European Union as a federal entity: not only unconstitutional, but impossible within the existing constitutional order

The judgement argues that to create a European federal state would require a new constitution. This is because according to the Basic Law (Art. 79.3), “An amendment of this Basic Law affecting the division of the Federation into Länder, the participation in principle of the Länder in legislation, or the basic principles laid down in Articles 1 and 20, is inadmissible.” Article 20 states:

Article 20 (Basic principles of state order, right to resist).

(1) The Federal Republic of Germany is a democratic and social Federal state.
(2) All state authority emanates from the people. It is exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs.
(3) Legislation is subject to the constitutional order; the executive and the judiciary are bound by the law.
(4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, should no other remedy be possible. (inserted 24 June 1968)

The transition into a federal European Union can thus not happen through a series of intergovernmental conventions. It can only happen if the German Basic Law ceases to be in force, which would occur “on the day on which a constitution adopted by a free decision of the German people comes into force” (Art. 146). This need not be a referendum: the Basic Law had to be ratified by two thirds of state (Land) legislatures, and Germany has been very suspicious of plebiscites since the end of the Weimar Republic. In any case, Article 20.4 provides the right of insurrection against any person seeking to abolish the constitutional order. The point, then, is that a federal European state would require an overthrow of the German constitutional order which renders this idea virtually impossible. Germans would have a legal right to insurrection against such a federal European state.

A federal European state, which in any case was unlikely, is expressly forbidden within the context of Germany’s existing constitutional order.

Democratic legitimacy of European institutions

The Constitutional Court went further than it needed to, in discussing the European project itself. It made some not-too-subtle hints that it might not be so accommodating in accepting the constitutionality of future Treaties. It, furthermore, stridently criticised the lack of powers of the European Parliament in stating that

The further development of the competences of the European Parliament can reduce, but not completely fill, the gap between the extent of the decision-making power of the Union’s institutions and the citizens’ democratic power of action in the Member States. Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction.

It also indicated a problem in that “its election does not take due account of equality” – which is a product of the 27 member states being able to decide their own electoral systems for choosing their country’s representatives in the European Parliament. It cannot have a politically decisive effect in European institutions.  As a result, it states:

Due to this structural democratic deficit, which cannot be resolved in a Staatenverbund [union of sovereign states], further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.

This is very significant stuff. The ruling insists, at least to an extent, on a democratic deficit, if the existing constitutional order is to be maintained. Power can be delegated to European institutions only to a limited extent, and only through member states’ constitutional bodies as representatives of the people, in the Council of Ministers.

As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority.

The Constitutional Court accepted the constitutionality of the Lisbon Treaty. But in reaffirming the inter-governmental nature of the EU, it underscored the right of Germany’s national parliament to participate in the legislative process, striking down the verbosely-titled “Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters”. In doing so it put definitive limits on the extent to which “ever-closer union” may continue.

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Briefly, it ruled that:

1. “The approval of [...] Germany in simplified revision procedures requires a law”, rather than merely the assent of the government. (3bb)
2. “The representative of the German government in the European Council may only consent to a Treaty amendment brought about by the application of the general bridging clause if the German Bundestag and the Bundesrat have adopted … a law”  (3cc)
3. “The veto right in the Council may not be waived without the participation of the competent legislative bodies even as regards subject-matters which have already been factually determined in the Treaties. The representative of the German government in the European Council or in the Council may therefore only consent to an amendment of primary legislation through the application of one of the special bridging clauses on behalf of the Federal Republic of Germany if the German Bundestag and, to the extent that this is required by the provisions on legislation, the Bundesrat, have approved this decision” (3dd)
4. “Also the flexibility clause under Article 352 TFEU can be construed in such a way that the integration programme envisaged in the provisions can still be predicted and determined by the German legislative bodies. With a view to the undetermined nature of possible cases of application, the use of the flexibility clause constitutionally requires ratification by the German Bundestag and the Bundesrat” (3ee)
5. “The Federal Constitutional Court’s competence of review is not affected by Declaration no. 17 on Primacy annexed to the Final Act of the Treaty of Lisbon. The foundation and the limit of the applicability of European Union law in the Federal Republic of Germany is the order to apply the law which is contained in the Act Approving the Treaty of Lisbon, which can only be given within the limits of the current constitutional order.” (3ff)
6. “The competences that have been newly established or deepened by the Treaty of Lisbon in the areas of judicial cooperation in criminal and civil matters, external trade relations, common defence and with regard to social concerns can, within the meaning of an interpretation of the Treaty that does justice to its purpose, and must, in order to avoid imminent unconstitutionality, be exercised by the institutions of the European Union in such a way that on the level of the Member States, tasks of sufficient weight as to their extent as well as their substance remain which legally and practically are the precondition of a living democracy.” (3gg, my emphasis)

Finally, on the last point – in the field of criminal civil matters,  external trade relations, defence, and social concerns:

- Due to the fact that democratic self-determination is affected in an especially sensitive manner by provisions of criminal law and law of criminal procedure, the corresponding foundations of competence in the Treaties must be interpreted strictly – on no account extensively -, and their use requires particular justification.

- The use of the dynamic blanket authorisation pursuant to Article 83.1(3) TFEU to extend the list of particularly serious crimes with a cross-border dimension “on the basis of developments in crime” is factually tantamount to an extension of the competences of the European Union and is therefore subject to the requirement of the enactment of a specific statute.

- In the area of judicial cooperation in criminal matters, particular requirements must additionally be placed on the provisions which accord a Member State special rights in the legislative procedure (Article 82.3, Article 83.3 TFEU: so-called emergency brake procedure). From the perspective of German constitutional law, the necessary measure of democratic legitimisation via the national parliaments can only be safeguarded by the German representative in the Council exercising the Member State’s rights set out in Article 82.3 and Article 83.3 TFEU only on the instruction of the Bundestag and, to the extent that this is required by the provisions on legislation, of the Bundesrat.

- Parliamentary approval will still be required for deployment of German forces

* German does have a word for ‘constitution’ (Verfassung), but the term ‘Basic Law’ was chosen in 1948 as this document was not envisaged to be particularly permanent, pending reunification with eastern Germany, or what was to become the German Democratic Republic. (I think, anyway.)