German court considers impact of Ireland's vote

Wed, Jun 18, 2008, 01:00

ANALYSIS:German judges are asked if the Lisbon Treaty is compatible with democracy, writes Derek Scally.

IRELAND'S REJECTION of the Lisbon Treaty has left German ratification hanging in the balance at the constitutional court in Karlsruhe.

Last month, Bavarian MP Peter Gauweiler lodged a constitutional challenge to the German ratification bill at the end of Berlin's parliamentary ratification process.

Three years ago, he lodged a similar challenge to the constitutional treaty and, when the French and Dutch voted No, the court decided there was nothing left to rule on.

In October 2006, four months after the Dutch vote, the presiding judge wrote that, with negotiations under way for what would eventually become the Lisbon Treaty, the court "presently saw no priority for a decision".

Legal opinion in Germany is divided over how the constitutional court will react to the Irish vote.

One camp predicts that, in contrast to 2005, the judges in Karlsruhe will be anxious to have their say on the Lisbon Treaty as their contribution to the post-referendum debate.

Experienced court watchers suggest that it is unlikely Mr Gauweiler will succeed, although a ruling against his application could include a request for extra measures in the ratification bill to ensure the preservation of democracy and to secure the role of the Bundestag in Berlin.

That would be a simple matter to fix and would not disturb the treaty itself.

Mr Gauweiler's camp suggest that the judges will take a similar view now as in 2005, meaning a verdict on whether German ratification of the treaty can proceed is unlikely anytime soon.

"The judges are no longer under political pressure from Berlin but can decide at leisure if my claims are justified," said Dr Gauweiler.

His application of several hundred pages argues the Lisbon Treaty is "incompatible" with German democratic principles.

A spokesman for chancellor Angela Merkel in Berlin declined to discuss the timeframe for a ruling on the challenge, citing the state separation of powers.

Dr Gauweiler and his co-complainant, Prof Dietrich Murswiek, are optimistic of a ruling in their favour - or at least a stringent legal interpretation of the unanimity principle of Lisbon Treaty ratification - preventing the German president from signing the bill into law.

"As judges and not politicians, they only have to deal with the legal points of our complaint and not the given political circumstances," said Prof Murswiek, professor of law at the Albert Ludwigs University of Freiburg.