What did the German court decide?

Friday 11 September 2009 18.46
Federal Constitutional Court - Ruling on Lisbon
Federal Constitutional Court - Ruling on Lisbon

Europe Editor Sean Whelan takes a closer look at the ruling of Germany’s top court on the Lisbon Treaty.


For all you Lisbon Treaty Nerds, this is a very interesting ruling by the Federal Constitutional Court. What stands out for me is that it is further confirmation that the Germans see very definite limits on how far EU integration can go.

They are adamant that the EU is – and can only be – a union of sovereign states, not a federal state in its own right (for the details of this argument see the court's statement).

Back at the start of this Lisbon process (around the turn of the century!), the Germans were very keen to see a delimitation of the competences or powers of the EU, to make sure that Germany in general - and the 16 States of the Federal Republic in particular - were not having powers swiped by Brussels.

The Germans are broadly happy with the outcome as expressed in the treaty, as the who-does-what of the EU has been made clearer, particularly the division between the EU institutions and the member states.

The Bundestag and the Bundesrat both ratified the treaty by hefty margins.Bundestag

Nevertheless, the treaty’s compatibility with the German Constitution was challenged by Conservative lawmaker Peter Gauweiller of the Christian Social Union, Bavaria’s ruling party (and sister party to Mrs Merkel’s CDU).

It was also challenged by members of Die Linke, the far left party that evolved from the former East German Communist Party.

Among the objections was the claim that provisions of the treaty meant the German Parliament could be bypassed by the German government, which could then collaborate with other governments to use powers without being subject of national parliamentary control or consent.

Other objections included the claim that the Lisbon Treaty gives the EU the form of a federal government without democratic control, and that its common foreign and security policy would lead to the militarisation of German foreign policy.

The Court rejected these arguments. It found the Lisbon Treaty was in conformity with the German Constitution, and that the act of parliament ratifying the treaty was also constitutional.

The problem it picked up on – and caused the court to put the German ratification process on ice until its fixed – is in the accompanying legislation on the role of the German parliament in EU decision making.

'The Act extending and strengthening the rights of the Bundestag and the Bundesrat in European Union matters' was found to be unconstitutional because it does not give the two chambers of parliament enough say on EU affairs.

Specifically the problem lies with the procedures the Lisbon Treaty proposes for making changes to the EU treaties in the future.

Lisbon has what is known as the 'general bridging clause' (AKA: the Passarelle) which empowers the heads of state or government (AKA: the European Council) to decide, unanimously, that they want to stop making decisions in a particular area by unanimity and start making decisions by qualified majority vote (QMV).

This procedure cannot be used for anything to do with military or defence matters.

Moreover, the intention of the heads to make this change must be notified to all national parliaments six months in advance. And any one of them can veto the move.

But Germany’s constitutional court says that’s not enough to meet the democratic standards of the German constitution. It insists that Germany’s parliament must pass a specific act granting the German government consent to make the change.

A similar legislative safeguard is required for the 'Flexibility Clause', where EU leaders can (acting unanimously, and with the prior consent of the European Parliament) give themselves power to attain one of the objectives of the EU as set out in the treaties, but where the treaties themselves have not provided the necessary powers.

National parliaments must be notified by the Commission. But Germany’s court ruling goes further, insisting that the Federal parliament must pass an act giving consent to the German government.

The court also listed some other areas where the parliament's role has to be defined in law before Lisbon can be ratified – notably in the fields of criminal law and the definition of cross border crimes (an extension of the list will now require a German act of parliament), the so called 'emergency brake' procedure in Judicial co-operation, which the court says requires parliamentary approval before use.

Military points

The court also had some points of Irish interest – notably on the German military.

It said that the existing requirement that the German parliament must give its approval before any German troops are deployed abroad will continue to exist under the Lisbon Treaty.

It says the Lisbon Treaty does not give the EU the right to use member states armed forces without the consent of both the member state and its parliament (you might call this the double lock – Ireland has a triple lock – government, parliament and UN approval).

The Court also says the Treaty of Lisbon does not restrict the German parliament’s freedom of action in the area of social policy to the extent that this would impair the principle of the social state (or welfare state as we might call it).

On this latter point the Court gives its guidance on what powers states have to make EU treaties:

'European unification on the basis of a union of sovereign states under the Treaties may … not be realised in such a way that that the member states do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life.'

In particular it says that if there any transfer of sovereign powers permitted at all, they must be very narrowly interpreted in the case of 'the administration of criminal law, the civil and military monopoly on the use of force, fundamental fiscal decision 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, provisions governing the media, and dealing with religious communities'.

A lot of that is rather reminiscent of the Irish 'guarantees' approved by the June EU summit.

Interestingly the German court restates its position that it has a power of review of the operation of the EU that sets itself above EU law and the European court of justice.

It has argued since the time of Maastricht Treaty that it is the job of the Federal Constitutional Court (and presumably other similar courts) to decide whether the EU is acting ultra vires – that is, going beyond the powers conferred on it by the member states.

By ruling that the German parliament must constructively give its assent through legislation to enable the German government to use certain provision of the Lisbon Treaty, the Court has boosted the powers of the German Parliament.

But it has also boosted its own powers - as it will now be able to review all flexibility clause/bridging clause legislation if it is challenged.

The German parliament is set to reconvene on 28 August for a first reading of the new law to give itself these extra oversight powers, with a final reading set for 8 September.

If German president Horst Kohler is satisfied the new law meets the court's demands, he would then be in a position to sign Germany’s instrument of ratification, possibly before the Irish referendum in early October (and Germany’s own General election on 27 September).

Sean Whelan