German court ruling aims to lessen Lisbon confusion

Thu, Jul 2, 2009, 01:00

ANALYSIS:Germany’s constitutional court has made important clarifications about the Lisbon Treaty, writes DEREK SCALLY.

IT’S RARE for a court case to end with smiles all round, but that was how things ended in Karlsruhe on Tuesday.

Politicians and lawyers streamed out of the wood-panelled chamber of Germany’s constitutional court, exhausted but happy, after listening for more than two hours to the red-robed judges read aloud their landmark Yes, but ruling on six challenges to the Lisbon Treaty.

Berlin, Brussels and other European capitals are thrilled by the Yes part of the ruling: the judges found unanimously that the Lisbon Treaty is compatible with Germany’s post-war Basic Law, in effect, the country’s constitution.

Equally thrilled are the Karlsruhe complainants, who saw Lisbon as a hollowing out of German parliamentary democracy.

Under the “but” part of the ruling, the ratification Bill can be signed into law only after the amendment of an accompanying Bill to give Germany’s two-chamber parliament greater say over the future transfer of powers to Brussels.

The ruling announces on its first page that it is handed down in Name des Volkes(in the name of the people), but the 147-page tome should be welcomed by people all over Europe.

Three months before the second Lisbon referendum, Karlsruhe has clarified many issues that caused confusion in the first referendum. The ruling is a calm checklist of just what the EU is and isn’t, where it is headed and where it isn’t headed – and reminds us that the “member states remain the masters of the treaties”.

The Lisbon Treaty does not transform the EU into a federal state, the court finds, because that would require the sidelining of Germany’s Basic Law – something that hasn’t happened – and which could only happen after a referendum.

As a result, the treaty doesn’t create an EU citizenship to supersede a national one, nor does it oblige member states to provide troops for a European army.

On the controversial flexibility clause – which critics say will allow blanket transferral of powers to Brussels – the court rules that the approval of laws by the government will still require parliamentary approval.

At the heart of the constitutional court ruling is a riddle the judges admit they are unable to solve: the relationship between citizens, their national parliaments and EU institutions.

To make the EU understandable, the judges say, member states have created EU institutions that loosely resemble national institutions. To make the EU fair, though, additional provisions have been introduced to give smaller countries a greater say than their size and population might otherwise warrant.

These additions mean that EU supranational institutes cannot adhere to the traditional “equality principle” of national institutions. In effect, the German judges see the oft-cited “democratic deficit” in the EU as an inherent, structural problem of the bloc’s multi-levelled institutions. They say the problem is inherent, too, in the Lisbon Treaty.

While it “strengthens [citizen] participation rights and . . . improves the transparency of decision-making”, this causes a contradiction: “With the treaty, the member states follow the blueprint of a federal state without being able to create . . . a parliamentary European government.”

What sounds like a nod to EU critics is in fact an attempt to follow one of the critics’ demands to its logical conclusion: a one- person-one-vote European parliament would result in a chamber dominated by larger member states.

Attempts to make the EU more democratic on one front – giving smaller countries more influence than their population might otherwise warrant – makes the EU appear less democratic on another front, but, the court argues, it is inappropriate to demand rights for a “self-contained sovereignty of the entire EU population” that neither exists nor is created by the Lisbon Treaty.

Rather than try to fix this unfixable structural deficit, the judges satisfy themselves that the European Union was, and under Lisbon will remain, a collection of sovereign democracies, the pooled rights of which give the 27-member bloc a unique legitimacy.

The European Union “preserves the same [democratic] effectiveness under changed circumstances” as long as equilibrium remains in the balance of power between the EU and member states and as long as the EU respects that responsibility for integration extends from member states.

In this case, “the democracy of the European Union cannot, and need not, be shaped in analogy to that of a state”.

While perceived as inherently EU-friendly, some severe readings in Germany have described this point in the ruling as a line in the sand of EU integration: here and no further.

Why else, they say, would Karlsruhe list explicit areas where states cannot surrender competence to Brussels: basic laws governing the private sphere as well as personal and social security, “as well as political decisions that are dependent, in a particular way, on the cultural, historical and linguistic preconceptions” that have developed in individual states.

Singling out criminal law, the court says a harmonisation can only happen “in particular, cross-border cases and under restrictive pre-conditions; the member states must, in principle, retain substantial room for action in this context”.

On tax matters, the ruling is also clear: “The German Bundestag must decide in a manner that may be accounted for vis-a-vis the people, on the total amount of the burdens placed on the citizens.”

The court makes clear what will happen if the EU oversteps its boundaries, refuses to retreat and endangers German “constitutional- conformed identity”: “if the worst comes to the worst, it is for Germany . . . to refuse to further participate in the European Union”.

The ruling has one short-term, practical consequence for political Berlin. Holidays already curtailed because of September’s general election have now been cancelled entirely.

Politicians, lawyers and advisers have begun the revision of the law governing Bundestag participation in EU matters to get it passed before election day. Germany is determined not to be the last EU state to ratify.

The verdict throws up interesting questions, particularly about its consequences. Will it create a new EU dialogue in the Bundestag? Will it encourage other European parliaments to demand a greater say over the transfer of competences to the EU?

“The Basic Law says Yes to Lisbon,” was the summing up of constitutional court vice-president Andreas Voßkuhle.

Just as the Lisbon Treaty will change the EU, so too will this verdict.

Even after ratification, the German parliament and its highest court will continue their watch.


Derek Scally is Berlin Correspondent of The Irish Times