Monday

21st Jan 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.

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  • 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).

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