Germany begins EU referendum debate with one eye on its past

Sat, Mar 24, 2012, 00:00

WORLD VIEW:There are calls in Germany for an open debate on the constitutional mandate which may be needed for European integration, writes DEREK SCALLY

IRELAND’S VOTE on the fiscal treaty is not the only referendum debate in Europe. Across the continent, political and legal minds are caught up in a furious discussion on whether the new fiscal rulebook demands they go to the people sooner rather than later on this latest stage of European integration.

The debate has reached even the most unlikely of places: Germany. For many social and one big historical reason, Germans don’t speak lightly of referendums. Its postwar democratic model was fashioned on indirect, parliamentary legitimation, a response to Hitler’s disastrous manipulation of direct democracy to abolish democracy and establish a dictatorship. That catastrophe is seared into the nation’s consciousness, particularly that of the political class. And yet, even here, a tentative EU referendum debate has begun – pushed by pro- European heavyweights.

The debate hinges on article 146 of the Basic Law, which allows for the constitution to be abolished once the German people have voted for a new one.

The need for such a referendum depends on whether you believe the fiscal treaty and the related permanent bailout fund (ESM) change the DNA of the EU to such an extent that a new constitutional rulebook is required between the bloc and its largest member state.

Two leading law professors from Heidelberg University believe this is the case, arguing in a widely-read paper that the ESM is a permanent transfer mechanism that “alters the identity” of the Basic Law. What for some is a statement of fact is, for others, a far-fetched and fanciful notion. After all a German chancellor can get backing on measures requiring constitutional change without asking the people. Required is a two-thirds Bundestag majority – of which Chancellor Merkel is assured for the ESM.

But just because Germany’s political class can always get around a poll via the Bundestag doesn’t necessarily mean one isn’t constitutionally necessary.

The constitutional court in Karlsruhe is almost certain to be asked to examine the ESM legislation, and opinion is divided on how it will rule. The court’s strident Lisbon Treaty opinion put a cat among the legal pigeons by placing clear limits on European integration under the current constitution.

Does the ESM and fiscal treaty cross the line? At a recent referendum discussion in Berlin, organised by the European Council on Foreign Relations , three distinct camps formed on this question. Leading the pro-referendum camp was pre-eminent German historian Prof Heinrich August Winkler.

“Such a vote would give Europe-friendly parties a chance to fight for Europe and I have no doubt they would get a majority,” he said. “We need an open debate about the finalité of integration. The call for ‘more Europe’ needs a constitutional mandate from the sovereign.” Arguments like that alarm many pro-EU German politicians who oppose an EU referendum by warning of the limits of direct democracy.

“I’m concerned that this discourse about article 146 will be instrumentalised by those who want less Europe,” said Jürgen Trittin, parliamentary co-leader of the Green Party, at the foreign relations council debate.

Hamburg law professor Armin von Bogdandy dismissed talk of referendums as a “phantom discussion” that was anathema to the very nature of postwar German democracy.

Germany’s participation in the European integration process is part of its constitutional identity, he argued, and the constitutional court is forbidden from permitting anything – such as an uncertain referendum outcome – that might endanger that process.

Karlsruhe’s Lisbon ruling was not necessarily hostile to further integration, he insisted, but reflected widespread concerns of how fundamental rights, currently policed by EU member states, can be guaranteed in the European context.

This is the crux of the German debate: how to make the case for pooled sovereignty. Finance minister Wolfgang Schaüble told the Berlin audience that all EU voters will, in the medium term, need to be won over to the idea of greater pooled sovereignty.

“If we are serious about political integration in Europe then we have to say again and again it is about creating something new instead of a monopoly of nation states. The nation state has exhausted its regulation monopoly, it is not able to serve in the 21st century. We need new forms of international governance.”

He was backed up by Trittin, who cited the Irish banking crisis as an example of the need for more, not less, Europe.

“It’s sometimes said the Irish case was caused by the nasty Germans, but the real threat lies in an unregulated [market] system,” he said. “The re-regulation of these markets will only be possible with a stronger Europe and so a stronger Europe will be a win for political sovereignty.”

The looming referendum in Ireland offers the chance for a narrow political debate on promissory notes, or a chance to join the wider European conversation about the future of European sovereignty.

For Germany, the issue of an actual referendum is almost irrelevant, as the country is already engaged in the debate such a vote should spark.

“The age of the sovereign state in Europe has passed,” observed Prof Winkler. “The era when nation states were seen as masters of the treaties can be seen, historically, as a transitory phase.” How does Europe want to organise the next phase of its history? That is a real referendum question.