German constitutional court hears arguments for and against Lisbon

 

GERMAN opponents of the Lisbon Treaty called for a halt to ratification yesterday, telling the country’s highest court it would dilute parliamentary power and curtail constitutional rights.

Foreign minister Frank Walter Steinmeier exchanged sharp words with opponents of the treaty at the start of yesterday’s two-day constitutional court hearing – in marked contrast to the lack of fanfare when the treaty passed through parliament last April. Full ratification is on hold until the court rules on four separate constitutional challenges.

At yesterday’s hearing, treaty opponents said the union had transformed itself from “custodian” of EU treaties to an uncontrollable “hydra”, drawing increasing competences from national parliaments.

Mr Steinmeier countered that the Lisbon Treaty was not an end in itself, but a means of strengthening the union’s democratic roots while preparing it for future challenges.

“Member states remain the masters of the treaties,” he said.

Prof Andreas Vosskuhle, heading the eight-judge panel, began proceedings with a reminder: that the court’s sole role was to assess the constitutionality of the Lisbon Treaty. “The European idea is not up for discussion here today,” he said.

The central concern of Germany’s highest court is whether the democratisation of EU institutions, as promised in the Lisbon Treaty, has kept pace with the transfer of powers to Brussels it demands. Consequently, the first day of the hearing was concerned largely with the EU’s principle of subsidiarity.

Several judges posed pointed questions of government counsel, asking if the transfer of competences from member states to Brussels automatically brought benefits to citizens and, if so, how these benefits were gauged.

Some judges are known to be concerned about this process, in particular that the treaty’s proposed criminal justice provisions contradict existing German constitutional standards.

Lisbon opponents latched on to this line of questioning, complaining that the treaty’s “flexibility clause” would make automatic the acquisition by the EU of further powers.

“The EU should only be given new competences when it is proven they are needed,” said Prof Markus Kerber, counsel for one of the four applicant parties. “But instead it automatically takes on more than its administration can handle.”

The Karlsruhe court has a prickly relationship with the federal government in Berlin, not to mention Brussels, since it began examining European treaties in 1952. As an independent final instance and custodian of the post-war constitution, the basic law, the court speaks out when it sees even the potential for German fundamental rights to be infringed.

In 1974 it announced that it retained the right to examine the compatibility of every European law with the German basic law. It was 12 years before the court ruled that its automatic checks were no longer necessary as long as adequate protection was provided by a now more established European legal framework.

In 1993 the court described its role vis-a-vis the EU as a “controlling checkpoint”, watching closely the direction of the union’s development. Today the judges in Karlsruhe find their controlling role under scrutiny, losing these responsibilities under Lisbon to the European Court in Luxembourg.

Seasoned court watchers expect the judges will approve Germany’s treaty ratification Bill, but with stringent conditions.

The hearing continues today, while a verdict is not expected until early summer.