Friday

20th Sep 2019

Opinion

Germany's important Lisbon Treaty judgement

The bulk of the six proceedings challenging the compatibility of Lisbon Treaty and the German Constitution initiated by the conservative MP Peter Gauweiler and a number of left-wing deputies from Die Linke, revolves around the question of whether the Lisbon Treaty erodes the German parliament's powers of participation in EU decision making.

As early as 29 May 1974, the Federal Constitutional Court decided in its famous Solange judgment that the Community lacked a parliament legitimized by direct democratic means and that it would reserve the right to review the compatibility of secondary Community law with the fundamental rights guaranteed by the German Constitution.

Read and decide

Join EUobserver today

Support quality EU news

Get instant access to all articles — and 18 year's of archives. 30 days free trial.

... or join as a group

  • The German court's judgement is expected later this year (Photo: wikiepdia)

On 22 October 1986, in a follow up judgment dubbed Solange II, it halted this review but retained the right to resort to it should it be needed.

Seven years later, on 12 October 1993, in its landmark Maastricht judgment, the Federal Constitutional Court emphasized the central role of the Bundestag within the EU institutional setup.

It claimed that "it is first and foremost the national peoples of the Member States who, through their national parliaments, have to provide democratic legitimacy" and that "functions and powers of substantial importance must remain for the German Bundestag".

National parliaments and the Lisbon Treaty

Under the Lisbon Treaty, national parliaments are involved in the EU's policy formulation process by safeguarding the subsidiarity principle. It is essentially a consultation mechanism operating before the onset of the EU decision-making procedure and is applicable only where competences are shared between the EU and the Member States.

National parliaments receive draft legislative proposals directly from EU institutions and, if an infringement of subsidiarity is detected, they may send a reasoned opinion to the Commission, the European Parliament, or the Council. This triggers the "early warning mechanism" aimed at the review of such a proposal. If ultimately circumvented, a national parliament or its chamber may initiate proceedings before the European Court of Justice.

In September 2006, European Commission President Jose Manuel Barroso initiated a similar proposal. It largely mirrors the early warning mechanism but is a separate political procedure and encompasses the proportionality principle. In the first year of this new system, the Bundesrat sent 21 opinions to the Commission and received 15 replies. By contrast, the Bundestag issued only three reactions.

Towards a new landmark judgement

In an article published last year, President of the German Federal Constitutional Court, Hans Jürgen Papier, said that "the current pillar structure of Europe is to be dissolved" and that "the current distinction between supranational Community law on the one hand, and Union law as a partial legal order characterised by international law on the other, thereby becomes obsolete". Such an appraisal might profit from another perspective.

"Pillars" have never been mentioned in the founding treaties and they also do not appear in the Lisbon Treaty. Rather, the treaties speak of "policies" or "fields" and the most important differentiating factor between them is the decision-making procedure and the participation of the European Parliament.

Although the Lisbon Treaty subjects the whole current Police and Judicial Cooperation in Criminal Matters to co-decision and thus allows for the involvement of the European Parliament, it retains unanimity in the field of Common Foreign and Security Policy. Moreover, the Lisbon Treaty confirms unequivocally that in this field "the adoption of legislative acts shall be excluded". Consequently, this would allow for Bundestag influence in this field, should it adopt a proactive approach.

Further, Mr Gauweiler rightly hypothesizes in his application that the Bundestag could be bypassed if, for example, the German environment minister, after an unsuccessful national bid to ban a particular type of light bulb, turns to the European level and succeeds there instead. In an article published two years ago, the same type of problem was emphasized by Roman Herzog and Lüder Gerken.

Yet since the Lisbon Treaty does not alter the decision-making procedure in this field, by-passing of the Bundestag could also happen under the present treaties. In addition, the Lisbon treaty expressly specifies that environment is the Union's shared competence, which means that the early warning mechanism would apply.

German foreign minister Frank-Walter Steinmeier has previously, and correctly, assessed that Lisbon does not undermine national parliaments' powers. Nevertheless, his subsequent observation that they will instead be completely involved in the European law-making process seems at best arguable.

Three final remarks suffice. First, both chambers of the German parliament have approved the Lisbon Treaty and have therefore made use of what the Federal Constitutional Court has deemed in its Maastricht judgment a key means of ensuring a democratic character of the Union and of Germany's membership in it.

Second, much of the academic literature, as well as an empirical inquiry recently conducted at Utrecht University, have shown that the Bundestag, unlike the Bundesrat, is quite passive in using the available tools of influencing Union's policies and laws.

Third, the outcome of the pending Lisbon Treaty cases is of prime importance not only for Germany but for the whole of the EU and its relevance transcends the remaining ratification procedures in Ireland, Poland and the Czech Republic. This is not least because the "sale of the state's vital powers" is at stake, as Prof. Klaus Buchner one of the complainants said.

It has all the ingredients to become the most influential pronouncement that the German Federal Constitutional Court has ever made regarding the EU.

The writer is a PhD candidate in European constitutional law at Utrecht University and Director for international relations of the Youth Dialogue Programme (NGO).

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

Brexit raises questions for EU defence integration

Brussels' current vision for cooperation on defence, where third countries can contribute but have no say in decision-making and in the guidance of operations, is unlikely to be attractive to the UK.

Europe's refugee policy is test of its true 'way of life'

As ex-national leaders, we know it's not easy to withstand public pressures and put collective interests ahead of domestic concerns. But without strong institutional leadership, EU values themselves risk ringing hollow, not least to those seeking protection on Europe's shores.

A new Commission for the one percent

We are only baffled by how nakedly Ursula von der Leyen's commission represents the very crisis affecting the EU. These commission nominees can expect their toughest questioning yet, they must be held accountable to those they should be representing.

How EU trains discriminate against the disabled

EU law requires us to give two days' notice to get the assistance we need, even for our daily commutes. We can't travel like everyone else. It is frustrating, annoying and time-consuming. In short, it is unacceptable.

Column

These are the crunch issues for the 2019-2024 EU commission

These developments will largely determine who will be running the world in the coming decades and perhaps generations. If the Europeans can't find an answer over the five years, they will be toast. And we haven't even mentioned climate change.

How EU firms and banks help fund Amazon fires

Deutsche Bank, BNP Paribas, Blackrock, and Vanguard collectively own more than $1.1bn in debt in the three largest soy, and the three largest cattle companies, and own $6bn worth of shares in these companies.

News in Brief

  1. Austria to veto EU trade deal with South America
  2. Brexit minister asks EU for 'flexibility' to secure a deal
  3. Kovesi has 'sufficient majority' for prosecutor post
  4. France, Finland give UK ultimatum for Brexit plan
  5. Minsk talks bode ill for EU's peace summit on Ukraine
  6. Poll: Poland's nationalist rulers to win October election
  7. Irish lawyers clash with EU commission in Apple case
  8. NGOs take aim at EU smartphone pollution

Defending the defenders: ombudsmen need support

Ombudsmen are often coming under attack or facing different kinds of challenges. These can include threats, legal action, reprisals, budget cuts or a limitation of their mandate.

Column

The benefits of being unpopular

Paradoxically, the lack of popularity may be part of the strength of the European project. Citizens may not be super-enthusiastic about the EU, but when emotions run too high in politics, hotheads may take over.

Stakeholders' Highlights

  1. Nordic Council of MinistersNew programme studies infectious diseases and antibiotic resistance
  2. UNESDAUNESDA reduces added sugars 11.9% between 2015-2017
  3. International Partnership for Human RightsEU-Uzbekistan Human Rights Dialogue: EU to raise key fundamental rights issues
  4. Nordic Council of MinistersNo evidence that social media are harmful to young people
  5. Nordic Council of MinistersCanada to host the joint Nordic cultural initiative 2021
  6. Vote for the EU Sutainable Energy AwardsCast your vote for your favourite EUSEW Award finalist. You choose the winner of 2019 Citizen’s Award.
  7. Nordic Council of MinistersEducation gets refugees into work
  8. Counter BalanceSign the petition to help reform the EU’s Bank
  9. UNICEFChild rights organisations encourage candidates for EU elections to become Child Rights Champions
  10. UNESDAUNESDA Outlines 2019-2024 Aspirations: Sustainability, Responsibility, Competitiveness
  11. Counter BalanceRecord citizens’ input to EU bank’s consultation calls on EIB to abandon fossil fuels
  12. International Partnership for Human RightsAnnual EU-Turkmenistan Human Rights Dialogue takes place in Ashgabat

Latest News

  1. Malta PM accused of 'blackmail' over slain reporter
  2. Diplomats back Romania's Kovesi for EU top prosecutor
  3. Brexit raises questions for EU defence integration
  4. Low-carbon cities can unlock €21tn by 2050, report finds
  5. France, Italy want 'automatic' distribution of migrants
  6. Europe's refugee policy is test of its true 'way of life'
  7. A new Commission for the one percent
  8. Juncker: No-deal Brexit 'palpable'

Stakeholders' Highlights

  1. Nordic Council of MinistersNew campaign: spot, capture and share Traces of North
  2. Nordic Council of MinistersLeading Nordic candidates go head-to-head in EU election debate
  3. Nordic Council of MinistersNew Secretary General: Nordic co-operation must benefit everybody
  4. Platform for Peace and JusticeMEP Kati Piri: “Our red line on Turkey has been crossed”
  5. UNICEF2018 deadliest year yet for children in Syria as war enters 9th year
  6. Nordic Council of MinistersNordic commitment to driving global gender equality
  7. International Partnership for Human RightsMeet your defender: Rasul Jafarov leading human rights defender from Azerbaijan
  8. UNICEFUNICEF Hosts MEPs in Jordan Ahead of Brussels Conference on the Future of Syria
  9. Nordic Council of MinistersNordic talks on parental leave at the UN
  10. International Partnership for Human RightsTrial of Chechen prisoner of conscience and human rights activist Oyub Titiev continues.
  11. Nordic Council of MinistersNordic food policy inspires India to be a sustainable superpower
  12. Nordic Council of MinistersMilestone for Nordic-Baltic e-ID

Stakeholders' Highlights

  1. Counter BalanceEU bank urged to free itself from fossil fuels and take climate leadership
  2. Intercultural Dialogue PlatformRoundtable: Muslim Heresy and the Politics of Human Rights, Dr. Matthew J. Nelson
  3. Platform for Peace and JusticeTurkey suffering from the lack of the rule of law
  4. UNESDASoft Drinks Europe welcomes Tim Brett as its new president
  5. Nordic Council of MinistersNordic ministers take the lead in combatting climate change
  6. Counter BalanceEuropean Parliament takes incoherent steps on climate in future EU investments
  7. International Partnership For Human RightsKyrgyz authorities have to immediately release human rights defender Azimjon Askarov
  8. Nordic Council of MinistersSeminar on disability and user involvement
  9. Nordic Council of MinistersInternational appetite for Nordic food policies
  10. Nordic Council of MinistersNew Nordic Innovation House in Hong Kong
  11. Nordic Council of MinistersNordic Region has chance to become world leader when it comes to start-ups
  12. Nordic Council of MinistersTheresa May: “We will not be turning our backs on the Nordic region”

Join EUobserver

Support quality EU news

Join us