Friday

23rd Feb 2018

Top German judge questions democratic innovations to EU treaty

Germany's most senior judge has suggested that while democracy has been strengthened in the EU's new treaty, a key innovation involving national parliaments does not go far enough and member states have no guarantee that EU powers will not continue to grow.

Professor Hans-Juergen Papier, president of Germany's constitutional court, points out that the principle of democracy "is for the first time dignified with its own section in the treaty."

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But speaking to an audience in Berlin's Humboldt University last week, the judge picked holes in the one of the main democratic improvements contained in the treaty - the role given to national parliaments to scrutinise proposed EU laws and say whether they think the EU is acting in an area where action would better be taken at member state or regional level, the so-called subsidarity principle.

Under the treaty rules, MPs are sent legislative proposals by the commission for examination. If they think the EU should not be acting in this area they have eight weeks to notify the commission, which is not bound to act.

If one third of national parliaments get together to complain about an EU law, it must be reviewed and the commission must give reasons if it intends to keep the law. The European Court of Justice may also be called on by member states to look into whether the subsidiarity principle is being upheld.

Professor Papier points out that the sheer number of laws coming from Brussels - there were 18,167 regulations and 750 directives between 1998 and 2004 - means that the MPs' early warning system is "somewhat impractible."

He also notes that the eight week deadline for delivering an opinion on an EU law considered as going too far from parliament is likely to prove too short in practice, while the numerous parliament opinions needed to get a law reviewed would require "considerable international coordination" in the two month timeframe.

The constitutional law expert also says it remains unclear whether the European Court of Justice, when presented with a case will stick to looking "purely at the verification of the subsidiarity question" or whether whether the EU has competence in the particular area.

According to Professor Papier, the dynamics of subsidiarity are connected to the "ever closer" union principle meaning that there is "from the point of view of member states no fixed limit guaranteed to the creeping transfer of competences [to EU level]."

Referring to the "welcome" fact that the EU's charter of fundamental rights is a binding part of the new treaty, the judge nevertheless the says that London and Warsaw's decision to opt out of the charter "reveals the deeply rooted mistrust of a union and a court" that pulls "ever more competences to it."

He says that at first glance this mistrust appears "misplaced" because the charter specifies that it only applies to EU law.

"But at second glance, the reservations of Poland and the United Kingdom cannot be dismissed fully out of hand," says Professor Papier referring to EU case law.

In 2005, the EU's highest court ruled that a national law on the possibility of limiting the work contracts of older people did not only break the EU's non-discrimination law but also the general legal principle of non-discrimination.

Professor Papier points out that the time period for implementing the EU non-discrimination law had not yet run out for member states so the court had used " the general legal principle of community law."

According to later statements by an attorney general of the European court of justice, quoted by the judge, the principle was less derived from legal texts but from a "platonic legal heaven," with a vagueness concerning both their content and their actual existence.

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