Tuesday, 30 June 2009

German ruling on EU Lisbon Treaty (in English)

The Federal Constitutional Court (Bundesverfassungsgericht) in Germany has now issued a press release in English with the main points of its Lisbon Treaty ruling:



Federal Constitutional Court - Press office -

Press release no. 72/2009 of 30 June 2009

Judgment of 30 June 2009
– 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08 und 2 BvR 182/09 –

________________________________________
Act Approving the Treaty of Lisbon compatible with the Basic Law;
accompanying law unconstitutional to the extent that legislative bodies
have not been accorded sufficient rights of participation
________________________________________


The Second Senate of the Federal Constitutional Court has decided today
that the Act Approving the Treaty of Lisbon (Zustimmungsgesetz zum
Vertrag von Lissabon) is compatible with the Basic Law. In contrast, the
Act Extending and Strengthening the Rights of the Bundestag and the
Bundesrat in European Union Matters (Gesetz über die Ausweitung und
Stärkung der Rechte des Bundestages und des Bundesrates in
Angelegenheiten der Europäischen Union) infringes Article 38.1 in
conjunction with Article 23.1 of the Basic Law (Grundgesetz - GG)
insofar as the Bundestag and the Bundesrat have not been accorded
sufficient rights of participation in European lawmaking procedures and
treaty amendment procedures. The Federal Republic of Germany’s
instrument of ratification of the Treaty of Lisbon may not be deposited
as long as the constitutionally required legal elaboration of the
parliamentary rights of participation has not entered into force. The
decision was reached unanimously as regards the result, by seven votes
to one as regards the reasoning (for the facts see German press releases
no. 2/2009 of 16 January 2009 and no. 9/2009 of 29 January 2009).

In essence, the decision is based on the following considerations:

1. Overview of the central aspects of the judgment
The judgment focuses on the connection between the democratic system
prescribed by the Basic Law on the level of the Federation and the level
of independent rule which has been reached on the European level. The
structural problem of the European Union is at the centre of the review
of constitutionality. The extent of the Union’s freedom of action has
steadily and considerably increased, not least by the Treaty of Lisbon,
so that meanwhile in some fields of policy, the European Union has a
shape that corresponds to that of a federal state, i.e. is analogous to
that of a state. In contrast, the internal decision-making and
appointment procedures remain predominantly committed to the pattern of
an international organisation, i.e. are analogous to international law;
as before, the structure of the European Union essentially follows the
principle of the equality of states.

As long as, consequently, no uniform European people, as the subject of
legitimisation, can express its majority will in a politically effective
manner that takes due account of equality in the context of the
foundation of a European federal state, the peoples of the European
Union, which are constituted in their Member States, remain the decisive
holders of public authority, including Union authority. In Germany,
accession to a European federal state would require the creation of a
new constitution, which would go along with the declared waiver of the
sovereign statehood safeguarded by the Basic Law. There is no such act
here. The European Union continues to constitute a union of rule
(Herrschaftsverband) founded on international law, a union which is
permanently supported by the intention of the sovereign Member States.
The primary responsibility for integration is in the hands of the
national constitutional bodies which act on behalf of the peoples. With
increasing competences and further independence of the institutions of
the Union, safeguards that keep up with this development are necessary
in order to preserve the fundamental principle of conferral exercised in
a restricted and controlled manner by the Member States. With
progressing integration, fields of action which are essential for the
development of the Member States’ democratic opinion-formation must be
retained. In particular, it must be guaranteed that the responsibility
for integration can be exercised by the state bodies of representation
of the peoples.

The further development of the competences of the European Parliament
can reduce, but not completely fill, the gap between the extent of the
decision-making power of the Union’s institutions and the citizens’
democratic power of action in the Member States. Neither as regards its
composition nor its position in the European competence structure is the
European Parliament sufficiently prepared to take representative and
assignable majority decisions as uniform decisions on political
direction. Measured against requirements placed on democracy in states,
its election does not take due account of equality, and it is not
competent to take authoritative decisions on political direction in the
context of the supranational balancing of interest between the states.
It therefore cannot support a parliamentary government and organise
itself with regard to party politics in the system of government and
opposition in such a way that a decision on political direction taken by
the European electorate could have a politically decisive effect. Due to
this structural democratic deficit, which cannot be resolved in a
Staatenverbund, further steps of integration that go beyond the status
quo may undermine neither the States’ political power of action nor the
principle of conferral.

The peoples of the Member States are the holders of the constituent
power. The Basic Law does not permit the special bodies of the
legislative, executive and judicial power to dispose of the essential
elements of the constitution, i.e. of the constitutional identity
(Article 23.1 sentence 3, Article 79.3 GG). The constitutional identity
is an inalienable element of the democratic self-determination of a
people. To ensure the effectiveness of the right to vote and to preserve
democratic self-determination, it is necessary for the Federal
Constitutional Court to watch, within the boundaries of its competences,
over the Community or Union authority’s not violating the constitutional
identity by its acts and not evidently transgressing the competences
conferred on it. The transfer of competences, which has been increased
once again by the Treaty of Lisbon, and the independence of
decision-making procedures therefore require an effective ultra vires
review and an identity review of instruments of European origin in the
area of application of the Federal Republic of Germany.

2. The standard of review
a) The Act Approving the Treaty of Lisbon is measured by the Federal
Constitutional Court against the standard of the right to vote. As a
right that is equivalent to fundamental right, a violation of the right
to vote can be challenged by a constitutional complaint (Article 38.1
sentence 1 in conjunction with Article 93.1 no. 4a GG). The right to
vote specifies the right to democratic self-determination, to free and
equal participation in the state authority exercised in Germany and to
compliance with the principle of democracy including the respect of the
constituent power of the people. The review of a violation of the right
to vote also comprises encroachments on the principles which are
codified in Article 79.3 of the Basic Law as the identity of the
constitution. The citizens’ right to determine, in equality and freedom,
public authority affecting them with regard to persons and
subject-matters through elections and other votes is anchored in human
dignity and is the fundamental element of the principle of democracy.
The principle of democracy is not amenable to weighing with other legal
interests. Amendments of the Basic Law affecting the principles laid
down in Article 1 and Article 20 of the Basic Law shall be inadmissible
(Article 79.3 of the Basic Law). The so-called eternity guarantee takes
the disposal of the identity of the free constitutional order even out
of the hands of the constitution-amending legislature. The constituent
power has not granted the representatives and bodies of the people a
mandate to change the constitutional principles which are fundamental
pursuant to Article 79.3 GG.

b) At the same time, the elaboration of the principle of democracy by
the Basic Law is open to the objective of integrating Germany into an
international and European peaceful order. The German constitution is
oriented towards opening the state system of rule to the peaceful
cooperation of the nations and towards European integration. Neither the
integration pari passu into the European Union nor the integration into
peacekeeping systems such as the United Nations necessarily lead to a
change in the system of exercise of public authority in the Federal
Republic of Germany. Instead, it is a voluntary, mutual commitment pari
passu, which secures peace and strengthens the possibilities of shaping
policy by joint coordinated action. The constitutional mandate to
realise a united Europe which follows from Article 23.1 of the Basic Law
and its Preamble means with regard to the German constitutional bodies
that participation in European integration is not left to their
political discretion. The Basic Law wants European integration and an
international peaceful order. Therefore not only the principle of
openness towards international law (Völkerrechtsfreundlichkeit), but
also the principle of openness towards European law
(Europarechtsfreundlichkeit) applies.

c) The authorisation to transfer sovereign powers to the European Union
pursuant to Article 23.1 GG is, however, granted under the condition
that the sovereign statehood of a constitutional state is maintained on
the basis of a responsible integration programme according to the
principle of conferral and respecting the Member States’ constitutional
identity, and that at the same time the Federal Republic of Germany does
not lose its ability to politically and socially shape the living
conditions on its own responsibility. Article 23.1 GG and the Preamble
do not say anything about the final character of the political
organisation of Europe. With its Article 23, the Basic Law grants powers
to participate and develop a European Union which is designed as an
association of sovereign national states (Staatenverbund). The concept
of Verbund covers a close long-term association of states which remain
sovereign, an association which exercises public authority on the basis
of a treaty, whose fundamental order is, however, subject to the
disposal of the Member States alone and in which the peoples of their
Member States, i.e. the citizens of the states, remain the subjects of
democratic legitimisation. The European Union must comply with
democratic principles as regards its nature and extent and also as
regards its own organisational and procedural elaboration (Article 23.1,
Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic
Law). This means firstly that European integration may not result in the
system of democratic rule in Germany being undermined. This does not
mean that a number of sovereign powers which can be determined from the
outset or specific types of sovereign powers must remain in the hands of
the state. European unification on the basis of a union of sovereign
states under the Treaties may, however, not be realised in such a way
that the Member States do not retain sufficient room for the political
formation of the economic, cultural and social circumstances of life.
This applies in particular to areas which shape the citizens’
circumstances of life, in particular the private space of their own
responsibility and of political and social security, which is protected
by the fundamental rights, and to political decisions that particularly
depend on previous understanding as regards culture, history and
language and which unfold in discourses in the space of a political
public that is organised by party politics and Parliament. To the extent
that in these areas, which are of particular importance for democracy, a
transfer of sovereign powers is permitted at all, a narrow
interpretation is required. This concerns in particular the
administration of criminal law, the civil and the military monopoly on
the use of force, fundamental fiscal decisions 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, the provisions governing the media, and dealing with
religious communities.

d) The Basic Law does not grant the German state bodies powers to
transfer sovereign powers in such a way that their exercise can
independently establish other competences for the European Union. It
prohibits the transfer of competence to decide on its own competence
(Kompetenz-Kompetenz). The principle of conferral is therefore not only
a principle of European law (Article 5.1 of the Treaty on European Union
; Article 5.1 sentence 1 and 5.12 of the Treaty on European Union
in its version of the Treaty of Lisbon ), but, just like the
European Union’s obligation to respect the Member States’ national
identity (Article 6.3 TEU; Article 4.2 sentence 1 TEU Lisbon), it takes
up constitutional principles from the Member States. The integration
programme of the European Union must therefore be sufficiently precise.
To the extent that the Member States elaborate the law laid down in the
Treaties in such a way that, with the principle of conferral
fundamentally continuing to apply, an amendment of the law laid down in
the Treaties can be brought about without a ratification procedure, a
special responsibility is incumbent on the legislative bodies, apart
from the Federal Government, as regards participation, which, in
Germany, must, on the national level, comply with the requirements under
Article 23.1 of the Basic Law (responsibility for integration). The act
approving a treaty amending a European Treaty and the national
accompanying laws must therefore be such that European integration
continues to take place according to the principle of conferral without
the possibility for the European Union of taking possession of
Kompetenz-Kompetenz or to violate the Member States’ constitutional
identity which is not amenable to integration, in this case, that of the
Basic Law. For borderline cases of what is still constitutionally
admissible, the German legislature must, if necessary, make arrangements
with its laws that accompany approval to ensure that the responsibility
for integration of the legislative bodies can sufficiently develop.

e) The Federal Constitutional Court reviews whether legal instruments of
the European institutions and bodies, adhering to the principle of
subsidiarity under Community and Union law (Article 5.2 ECT; Article 5.1
sentence 2 and 5.3 TEU Lisbon), keep within the boundaries of the
sovereign powers accorded to them by way of conferred power (ultra vires
review). Furthermore, the Federal Constitutional Court reviews whether
the inviolable core content of the constitutional identity of the Basic
Law pursuant to Article 23.1 sentence 3 in conjunction with Article 79.3
of the Basic Law is respected (identity review). The exercise of these
competences of review, which are constitutionally required, safeguards
the fundamental political and constitutional structures of sovereign
Member States, which are recognised by Article 4.2 sentence 1 TEU
Lisbon, even with progressing integration. Its application in a given
case follows the principle of the Basic Law’s openness towards European
Law.

3. The subsumption
a) There are no decisive constitutional objections to the Act Approving
the Treaty of Lisbon.

aa) With the present status of integration, the European Union does,
even upon the entry into force of the Treaty of Lisbon, not yet attain a
shape that corresponds to the level of legitimisation of a democracy
constituted as a state. It is not a federal state but remains an
association of sovereign states to which the principle of conferral
applies.

The European Parliament is not a body of representation of a sovereign
European people but a supranational body of representation of the
peoples of the Member States, so that the principle of electoral
election, which is common to all European states, is not applicable with
regard to the European Parliament. Other provisions of the Treaty of
Lisbon, such as the double qualified majority in the Council (Article
16.4 TEU Lisbon, Article 238.2 of the Treaty on the Functioning of the
European Union ), the elements of participative, associative and
direct democracy (Art. 11 TEU Lisbon) as well as the institutional
recognition of the national Parliaments (Article 12 TEU Lisbon) cannot
compensate the deficit of European public authority that exists when
measured against requirements on democracy in states, but can
nevertheless increase the level of legitimisation of the Staatenverbund.

bb) With the entry into force of the Treaty of Lisbon, the Federal
Republic of Germany will remain a sovereign state. In particular, the
substance of German state authority is protected. The distribution of
the European Union’s competences, and their delimitation from those of
the Member States, takes place according to the principle of conferral
and according to other mechanisms of protection, in particular according
to provisions concerning the exercise of competences. The transfer of
sovereign powers to the European Union, which is thus performed in a
controlled and responsible manner, is not called into question by
individual provisions of the Treaty of Lisbon. This applies first of all
to the simplified amendment procedure (see in particular Article 48.6
TEU Lisbon). The “approval” of the Federal Republic of Germany in
simplified revision procedures requires a law within the meaning of
Article 23.1 sentence 2 of the Basic Law as a lex specialis with regard
to Article 59.2.

cc) To the extent that the general bridging clause under Article 48.7
TEU Lisbon makes possible the transition from the principle of unanimity
to the principle of qualified majority in the decision-making of the
Council, or the transition from the special to the ordinary legislative
procedure, this is also a Treaty amendment under primary law, which is
to be assessed pursuant to Article 23.1 sentence 2 of the Basic Law. The
national parliaments’ right to make known their opposition (Article
48.7(3) TEU Lisbon) is not a sufficient equivalent to the requirement of
ratification. The representative of the German government in the
European Council may only consent to a Treaty amendment brought about by
the application of the general bridging clause if the German Bundestag
and the Bundesrat have adopted within a period yet to be determined a
law pursuant to Article 23.1 of the Basic Law, which takes the purpose
of Article 48.7(3) TEU Lisbon as an orientation. This also applies in
case of the special bridging clause pursuant to Article 81.3(2) TFEU
being used.

dd) A law within the meaning of Article 23.1 sentence 2 of the Basic Law
is not required to the extent that special bridging clauses are
restricted to areas which are already sufficiently determined by the
Treaty of Lisbon, and which do not provide for a right for national
Parliaments to make known their opposition. Also in these cases,
however, it is incumbent on the Bundestag and, to the extent that the
legislative competences of the Länder are affected, on the Bundesrat, to
comply with their responsibility for integration in another suitable
manner. The veto right in the Council may not be waived without the
participation of the competent legislative bodies even as regards
subject-matters which have already been factually determined in the
Treaties. The representative of the German government in the European
Council or in the Council may therefore only consent to an amendment of
primary legislation through the application of one of the special
bridging clauses on behalf of the Federal Republic of Germany if the
German Bundestag and, to the extent that this is required by the
provisions on legislation, the Bundesrat, have approved this decision
within a period yet to be determined, which takes the purpose of Article
48.7(3) TEU Lisbon as an orientation.

ee) Also the flexibility clause under Article 352 TFEU can be construed
in such a way that the integration programme envisaged in the provisions
can still be predicted and determined by the German legislative bodies.
With a view to the undetermined nature of possible cases of application,
the use of the flexibility clause constitutionally requires ratification
by the German Bundestag and the Bundesrat on the basis of Article 23.1
sentences 2 and 3 of the Basic Law.

ff) The Federal Constitutional Court’s competence of review is not
affected by Declaration no. 17 on Primacy annexed to the Final Act of
the Treaty of Lisbon. The foundation and the limit of the applicability
of European Union law in the Federal Republic of Germany is the order to
apply the law which is contained in the Act Approving the Treaty of
Lisbon, which can only be given within the limits of the current
constitutional order. In this respect, it is insignificant whether the
primacy of application, which the Federal Constitutional Court has
already essentially recognised for Community law, is provided for in the
Treaties themselves or in Declaration no. 17 annexed to the Final Act of
the Treaty of Lisbon.

gg) The competences that have been newly established or deepened by the
Treaty of Lisbon in the areas of judicial cooperation in criminal and
civil matters, external trade relations, common defence and with regard
to social concerns can, within the meaning of an interpretation of the
Treaty that does justice to its purpose, and must, in order to avoid
imminent unconstitutionality, be exercised by the institutions of the
European Union in such a way that on the level of the Member States,
tasks of sufficient weight as to their extent as well as their substance
remain which legally and practically are the precondition of a living
democracy. In this context, the following aspects must be given
particular attention:

- Due to the fact that democratic self-determination is affected in an
especially sensitive manner by provisions of criminal law and law of
criminal procedure, the corresponding foundations of competence in the
Treaties must be interpreted strictly - on no account extensively -,
and their use requires particular justification.

- The use of the dynamic blanket authorisation pursuant to Article
83.1(3) TFEU to extend the list of particularly serious crimes with a
cross-border dimension “on the basis of developments in crime” is
factually tantamount to an extension of the competences of the European
Union and is therefore subject to the requirement of the enactment of
a specific statute under Article 23.1 sentence 2 GG.

- In the area of judicial cooperation in criminal matters, particular
requirements must additionally be placed on the provisions which accord
a Member State special rights in the legislative procedure (Article
82.3, Article 83.3 TFEU: so-called emergency brake procedure). From the
perspective of German constitutional law, the necessary measure of
democratic legitimisation via the national parliaments can only be
safeguarded by the German representative in the Council exercising the
Member State’s rights set out in Article 82.3 and Article 83.3 TFEU
only on the instruction of the Bundestag and, to the extent that this
is required by the provisions on legislation, of the Bundesrat.

- The mandatory requirement of parliamentary approval for the deployment
of the armed forces abroad will continue to exist upon the entry into
force of the Treaty of Lisbon. The Treaty of Lisbon does not confer on
the European Union the competence to use the Member States’ armed
forces without the approval of the respective Member State affected or
of its parliament. It also does not restrict the possibilities of
action of the German Bundestag in the area of social policy to such an
extent that this would impair the principle of the social state
(Article 23.1 sentence 3 in conjunction with Article 79.3 GG) in a
constitutionally objectionable manner and inadmissibly curtail the
democratic scope for decision-making that is required in this context.

b) There are also no decisive constitutional objections against the Act
Amending the Basic Law (Articles 23, 45 and 93) (Gesetz zur Änderung des
Grundgesetzes ). A violation of democratic
principles pursuant to Article 79.3 GG occurs neither by Article 23.1a
GG, new version, which elaborates the right to bring a subsidiarity
action as a minority right and sets the quorum at one fourth of the
Members, nor by Article 45 sentence 3 GG, new version.

c) In contrast, the Act Extending and Strengthening the Rights of the
Bundestag and the Bundesrat in European Union Matters infringes Article
38.1 in conjunction with Article 23.1 of the Basic Law insofar as rights
of participation of the German Bundestag and the Bundesrat have not been
elaborated to the constitutionally required extent. If the Member States
elaborate the European law laid down in the Treaties on the basis of the
principle of conferral in such a way that an amendment of the Treaty law
can be brought about solely or decisively by the institutions of the
European Union - albeit under the requirement of unanimity in the
Council -, a special responsibility is incumbent on the national
constitutional bodies in the context of participation. In Germany, this
responsibility for integration must on the national level comply with
the constitutional requirements made in particular under Article 23.1
GG.


This press release is also available in the original german version.



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The reasoning is interesting for everyone who studies the unique political construct the European Union is at its current stage of development.



Ralf Grahn