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Germany, Lisbon and Due Process

by dvx Fri Jul 3rd, 2009 at 05:15:05 AM EST

The other day, Germany's highest court rendered a decision as to the constitutionality of the Lisbon Treaty, and news reports responded, as the Salon of the day so aptly documented, a veritable psychedelic lightshow of metaphors:

German leaders hail court's green light for EU reform treaty | Europe | Deutsche Welle | 30.06.2009

A ruling by Germany's highest court that the EU's reforming Lisbon Treaty is compatible with German basic law has been received in Germany and Europe as an encouraging step forward. 

The court rejected complaints from Germany's far-left party and a maverick conservative member of parliament that the treaty would transfer too much power to Brussels.  It said the reforms were fundamentally in line with the country's constitution, but it set conditions.

Yellow Light from Constitutional Court: Germany Cannot Ratify Lisbon -- Yet - SPIEGEL ONLINE - News - International

Germany's highest court has ruled that the Lisbon Treaty is not fundamentally incompatible with the country's constitution. However, it has called a halt to the ratification process until the German parliament changes a domestic law to strengthen the role of the country's legislative bodies in implementing European Union laws.

With the process of ratifying the Lisbon Treaty hitting one speed bump after another, many would have expected that at least Germany would have given the treaty safe passage. However, an attempt by some German legislators to block its ratification has led to delays even in the European Union's biggest country.

With such reporting, one can well understand why interested readers were left plaintively wondering:

ThatBritGuy:

Er - so was the light green, yellow or some other colour?

Actually, this ruling might best be described as a victory for due process.

Front-paged with a slight edit by afew


What exactly was at issue?

Verfassungsgericht zu Lissabon-Vertrag - Die Sorge vor der nationalen Entmachtung - Politik - sueddeutsche.deConstitutional Court on Lisbon Treaty - Concerns about National Disempowerment
Die vom Gericht ausgewählten sechs Klagen stammen von dem CSU-Bundestagsabgeordneten Peter Gauweiler, von der Bundestagsfraktion der Linken, dem ÖDP-Vorsitzenden Klaus Buchner und einer Vierer-Gruppe um Franz Ludwig Graf von Stauffenberg. Die unterschiedlich akzentuierten Anträge haben einen gemeinsamen Kern: die Sorge um das Demokratieprinzip.The six complaints selected by the Court were filed by CSU Bundestag member Peter Gauweiler, the Bundestag fraction of the Left Party, ÖDP (Eco-Democratic Party) chairman Klaus Buchner and a group of four individuals headed by Franz Ludwig Count von Stauffenberg. With all their different main areas of emphasis, the petitions shared a common core element: concern about the democratic principle.
Es sei durch eine Entmachtung des Bundestags und ein nicht mehr zu bremsendes Wachstum der EU-Kompetenzen verletzt, hieß es. Die mit dem Reformvertrag beabsichtigte Stärkung des EU-Parlaments reiche nicht aus. [...]They asserted that the [Basic Law] was in danger of being violated through a disempowerment of the Bundestag and by an unstoppable growth of EU competencies, and that the strengthening of the EU parliament envisaged by the treaty was not sufficient. [...]
Die Klagen richten sich sowohl gegen das vom Bundestag und vom Bundesrat verabschiedete Zustimmungsgesetz als auch gegen Teile der Begleitgesetze. [...]The complaints targeted both the approval law passed by the Bundesrat and Bundestag and parts of the accompanying laws. [...]

So formally, the Treaty as such was never challenged.

In its ruling, the German Constitutional Court affirmed the fundamental constitutionality of the process, but required modifications of the enabling laws, particularly as regards the "bridge clause" or passerelle:

Lissabon-Urteil: Ein arbeitsreicher Sommer in Berlin - Europäische Union - Politik - FAZ.NETLisbon Verdict: a Long, Hot Summer in Berlin
Der vom Bundesverfassungsgericht bemängelte Entwurf des ,,Begleitgesetzes" regelte die Beteiligung von Bundestag und Bundesrat [an der Brückenklauselentscheidung]. Demnach sollte der Bundestag mit einer Mehrheit der Stimmen den Übergang in ein anderes [EU-] Gesetzgebungsverfahren ablehnen können, wenn schwerpunktmäßig Gesetzgebungsbefugnisse des Bundes berührt sind, und der Bundesrat den Schritt ablehnen können, wenn praktisch ausschließlich Länderbefugnisse betroffen sind; [...]. Der Gesetzentwurf sah aber nicht vor, dass sich Bundestag und/oder Bundesrat grundsätzlich äußern müssen, wenn die ,,Brückenklausel" angewandt werden soll. Dagegen wandten sich jetzt die Karlsruher Richter: ,,Ein Schweigen von Bundestag und Bundesrat reicht... nicht aus, diese Verantwortung wahrzunehmen", heißt es in der Urteilsbegründung.The draft of the "accompanying law" deemed flawed by the Federal Constitutional Court regulated the participation of the Bundestag and Bundesrat in [the bridge clause decision]. It provided that the Bundestag could refuse the transition to another [EU] legislative process where these mainly concern the legislative authority of the federal government, and the Bundesrat could refuse this step where essentially state matters are affected; [...]. However, the bill did not stipulate that the Bundestag and/or Bundesrat absolutely must be consulted if the "bridge clause" is to be applied. The justices in Karlsruhe rejected this: the opinion states, "Silence on the part of the Bundestag and Bundesrat is not ... sufficient for the exercise of this responsibility."

So, while a law in conformity with the high court's ruling might slow a streamlining of European procedures, it will, at least theoretically, contribute to a greater legitimacy of such an undertaking in Germany: a victory for due process.

Meanwhile, back in the real world, this has kicked off a messy scramble:

Lissabon-Urteil: Ein arbeitsreicher Sommer in Berlin - Europäische Union - Politik - FAZ.NET
Bis zum 4. Oktober, wenn die Iren ein zweites Mal über den Vertrag abstimmen werden, muss er in Deutschland unter Dach und Fach sein. Das war der Bundesregierung und den Führenden der Fraktionen von Union und SPD am frühen Morgen klar - und das meldeten sie nach Brüssel und in die anderen europäischen Hauptstädte.Germany needs to have the treaty signed, sealed and delivered by 4 October, when the Irish go to vote on it for a second time. This was clear to the federal government and the heads of the Union and SPD parliamentary fractions early on - and this is what they promised Brussels and the other European capitals.

No easy task:

Lissabon-Urteil: Ein arbeitsreicher Sommer in Berlin - Europäische Union - Politik - FAZ.NET
Normalerweise brauchen wir für ein solches Verfahren ein halbes Jahr", sagt [der europapolitische Sprecher der CDU/CSU-Fraktion im Bundestag, Michael] Stübgen, der als Prozessbeteiligter für seine Fraktion das Urteil in Karlsruhe entgegennahm. Die kommenden Wochen würden ,,hart", weil ein ,,komplett neues Gesetz" formuliert werden müsse. "Normally we need have a year for this kind of a process," says [Michael] Stübgen [European policy speaker of the CDU/CSU parliamentary fraction], who took delivery of the ruling as his party's representative in the suit. The coming weeks are going to be "hard" because a "completely new law" needs to be formulated.

On past experience, it is the laws that are passed in haste that most often end up in Karlsruhe. Not to mention it's an election year. So don't be surprised if there's a sequel.

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The actual meat of the matter is so technical that one might wonder what the hoopla is all about.

Except that these technicalities have the potential to delay Lisbon - or even derail it.

I'm curious to see if the legislators will get it right the second time around.

The fact is that what we're experiencing right now is a top-down disaster. -Paul Krugman

by dvx (dvx.clt ät gmail dotcom) on Wed Jul 1st, 2009 at 02:15:13 PM EST
European Tribune - Germany, Lisbon and Due Process
So formally, the Treaty as such was never challenged.

"Getting it right" may be something of a moving target.  It seems that it was the implementation process which was being challenged.  It would really be helpful if this was resolved prior to the Irish referendum.  We don't need further scare stories on the lines of "even the Germans aren't sure about the Treaty because it doesn't safeguard/undermines the German democratic process".

notes from no w here

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Wed Jul 1st, 2009 at 02:54:55 PM EST
[ Parent ]
Frank Schnittger:
We don't need further scare stories on the lines of "even the Germans aren't sure about the Treaty because it doesn't safeguard/undermines the German democratic process".

Well, strictly speaking the issue is decided as far as Germany is concerned, regardless of whether they finish cutting the paperwork: the Treaty is in conformity with the Basic Law provided that any bridge clause changes require the positive consent of the legislative houses. Although I realize such nuances can be difficult to communicate.

Another horror scenario would be if the Bundestag cuts corners in an effort to get the bill passed by (I would guess) sometime in August (remember, there's an election here at the end of September). Because we can be sure the opponents will go over the resulting law with a fine tooth comb looking for weak points that they can go back to court with. I don't know Irish politics but I imagine that might be even less helpful.

The fact is that what we're experiencing right now is a top-down disaster. -Paul Krugman

by dvx (dvx.clt ät gmail dotcom) on Wed Jul 1st, 2009 at 03:51:53 PM EST
[ Parent ]
Probably the best line to take - from an Irish perspective - is that the Lisbon Treaty has been found to be compatible with the German Constitution and the nuances of how they choose to implement it is a matter for the Germans themselves. The german elections will, presumably, also return a pro-Lisbon majority just before the irish vote.

The key issue is whether the Treaty has been ratified by Germany by the time the Irish vote.  That will then just leave the Czechs and Poles - who have, bizarrely, said they will ratify if Ireland does.  Perhaps the Irish should vote for their Governments as well if they are going to be empowered to tell them what to do.

And then of course there is the question of whether Brown survives that long...

notes from no w here

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Wed Jul 1st, 2009 at 04:06:57 PM EST
[ Parent ]
There's a rather cross-party-line agreement on being an exemplary European country in Germany (except when real interests come into play - they don't here), and Germany was the main driver behind the Lisbon Treaty in the first place. The factions in the Bundestag are looking to complete the ratification before the second Irish referendum. Politics isn't going to play into this except from the side of the Left Party, which might make it into a campaign issue.
by nanne (zwaerdenmaecker@gmail.com) on Thu Jul 2nd, 2009 at 01:49:23 PM EST
[ Parent ]
So formally, the Treaty as such was never challenged.

That the challenge is of the approval law is only logical, as the Lisbon Treaty is not in force itself at the time of the challenge. However, it is possible to challenge the treaty indirectly by challenging the legality of any approval law. That is seemingly what some of the litigants did, and the Bundesverfassungsgericht rejected those challenges.

I haven't had time to read the judgment of the BVerfG, but it seems from the press reports that Karlsruhe continues to uphold its German exception, that being, their own right to annul EU laws they see as being in conflict with the German Grundgesetz. This was already one of the key elements of the judgment on the Maastricht Treaty. The Bundesverfassungsgericht has never actually done this, mind. It just preserves the right to do so.

by nanne (zwaerdenmaecker@gmail.com) on Thu Jul 2nd, 2009 at 01:59:48 PM EST
nanne:
it seems from the press reports that Karlsruhe continues to uphold its German exception, that being, their own right to annul EU laws they see as being in conflict with the German Grundgesetz.

This is a fundamental nonsense.  The EU is not subject to German Sovereignty.  Germany has derogated some of its Sovereignty to the EU by way of Treaties such as the Maastricht Treaty.  Similarly the Irish Parliament or courts cannot overrule the EP or Council in matters derogated to them by Treaty.  The final arbiter in such disputes is the EJC, not an Irish or German Court.

This is analogous to the USA signing up to the Geneva Conventions on Torture, but then failing to recognise the right of the International Court established under that Convention to rule on whether US citizens have committed torture or war crimes or not.

Its a classic case of - this applies to everyone else bar us - we are Sovereign over all.  A dangerous Precedent.

notes from no w here

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Jul 2nd, 2009 at 07:52:12 PM EST
[ Parent ]
Whether nonsense or not, nanne is correct. The Constitutional Court has consistently asserted its right to review EU initiatives for conformity with the Basic Law. Some articles elsewhere have touched on the potential for conflicting jurisdiction.

But when viewed in context, I don't think it's nonsense at all: the job of a constitutional court is to uphold the constitution, no? If the issue is important enough, the constitution can be amended. But it is the court's job to see that everything is done in plain sight, and not through the back door.

Just as an aside, it is interesting to note that it is the written constitutions which are amenable to amendment, and the unwritten ones - like England's - that are written in stone.

The fact is that what we're experiencing right now is a top-down disaster. -Paul Krugman

by dvx (dvx.clt ät gmail dotcom) on Fri Jul 3rd, 2009 at 03:24:02 AM EST
[ Parent ]
It is hardly German exceptionalism to want to enforce its own constitution. However Germany has also ceded sovereignty to the EU in a large number of areas.  When there is a dispute over EU competency or actions, the EJC is the final arbiter. What would concern me is if the German Court arrogates to itself a right to adjudicate on EU actions which effect many member states.  Even the House of Commons doesn't claim jurisdiction over EU affairs.

notes from no w here
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Jul 3rd, 2009 at 09:24:44 AM EST
[ Parent ]
In Spain, also, when EU law is transposed into Spanish legislation constitutional amendments are sometimes necessary and are carried out in order to avoid having the Constitutional Court strike down the transposed law.

There is no problem with having states' constitutional courts rule on the constitutionality of EU law as transposed into national law. After all, sovereignty rests with the member states (given that the EU cannot reform its own constituent treaties, but new treaties among the member states have to be approved).

A man of words and not of deeds is like a garden full of weeds; a man of deeds and not of words is like a garden full of turds — Anonymous

by Migeru (migeru at eurotrib dot com) on Fri Jul 3rd, 2009 at 09:30:32 AM EST
[ Parent ]
Same here. That's why we have referendums on treaties, basically.
by Colman (colman at eurotrib.com) on Fri Jul 3rd, 2009 at 09:35:27 AM EST
[ Parent ]
This discussion is important precisely because the NO campaign in Ireland use the EJC jurisdiction argument as a reason for voting No to Lisbon.  See Lisbon Treaty referendum - The Irish Times - Thu, Jul 02, 2009

The Treaty of Lisbon is a legal document and is subject to interpretation by the European Court of Justice (ECJ). In many cases, it will only be when a case relating to this treaty comes before the ECJ, and is ruled on, can one say what is fact and what is not. This is the case with all legal documents but especially in the case of the Lisbon Treaty which is especially tortuous in its wording.

The European Court of Justice has in the past been described as "a court with a mission" and that mission is to advance the further integration of the countries of the European Union.

If the Treaty is passed, some of the claims by the No side, derided as "outlandish" by Lucinda Creighton, may well come to pass at a future date if the ECJ decides to so rule as a means of furthering the further integration of EU nations.

However, if you don't like the EJC you shouldn't be in the EU at all, as the EJC has jurisdiction over all the Treaties we have signed up to.  This is therefore, more accurately, an argument against EU membership, not the Lisbon Treaty per se.

notes from no w here

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Jul 3rd, 2009 at 10:49:38 AM EST
[ Parent ]
Madam, - Paul Williams (Letters, 2nd. July) writes that "If the [Lisbon] Treaty is passed, some of the claims by the No side, derided as "outlandish" by Lucinda Creighton, may well come to pass at a future date if the ECJ decides to so rule as a means of furthering the further integration of EU nations."

However the European Court of Justice (ECJ) has had jurisdiction over all EU Treaties since it's foundation in 1952 and has had an Irish Judge as a member since our accession in 1973. Perhaps Mr. Williams might like to give some previous examples of it's "outlandish" judgements in furtherance of EU integration.

It should also be noted that the Lisbon Treaty doesn't change the jurisdiction of the ECJ in any way, so an argument against the ECJ is an argument against membership of the EU, not the Lisbon Treaty per se.  So is it really our EU membership that Mr. Williams has a problem with?

notes from no w here

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Jul 3rd, 2009 at 11:16:39 AM EST
[ Parent ]
Migeru:
There is no problem with having states' constitutional courts rule on the constitutionality of EU law as transposed into national law.

Certainly. But it is also at least conceivable that a constitutional court (not just in Germany) could find that it is not possible to implement an EU directive in national law in conformity with that country's constitution.

The fact is that what we're experiencing right now is a top-down disaster. -Paul Krugman

by dvx (dvx.clt ät gmail dotcom) on Fri Jul 3rd, 2009 at 11:05:18 AM EST
[ Parent ]
And then you need to reform the Constitution or reform the EU law.

A man of words and not of deeds is like a garden full of weeds; a man of deeds and not of words is like a garden full of turds — Anonymous
by Migeru (migeru at eurotrib dot com) on Fri Jul 3rd, 2009 at 11:13:30 AM EST
[ Parent ]
Unless the EU Directive is not in conformance with EU law as interpreted by the ECJ, a member state must implement it as EU law takes precedence even over the constitution of member states.  That is what the pooling of Sovereignty is all about.  Germany is no longer absolutely Sovereign in its own right.  It is Sovereign only insofar as it acts within the EU Treaties it has signed up to, and these are subject to ECJ interpretation, not a German Court.  The most a German Court could do is require a modification of the German Constitution in conformance with EU law.

notes from no w here
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Jul 3rd, 2009 at 11:14:14 AM EST
[ Parent ]
Of course, Germany also has the option to withdraw from the EU if it finds EU law in conflict with its own constitution and finds itself unwilling or unable to alter its constitution.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Fri Jul 3rd, 2009 at 11:24:12 AM EST
[ Parent ]
As far as I know, Lisbon is the first Treaty to make specific provision for a members state withdrawing.  Up until now there was no explicit mechanism for so doing.

notes from no w here
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Jul 3rd, 2009 at 11:44:48 AM EST
[ Parent ]
No, that would be Nice.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Fri Jul 3rd, 2009 at 11:59:18 AM EST
[ Parent ]
Are you sure? My readings are the same as Frank's.

You can't be me, I'm taken
by Sven Triloqvist on Fri Jul 3rd, 2009 at 12:06:36 PM EST
[ Parent ]
Very sure. I distinctly remember that point being brought up when Nice was discussed in '01 (in the context of Danish € membership).

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Fri Jul 3rd, 2009 at 01:59:57 PM EST
[ Parent ]
FWIW, Wiki begs to differ

From what I have read of the treaty "debate" in Ireland, something "being bought up" and something being true often have only the most casual of connections.

by det on Fri Jul 3rd, 2009 at 05:00:55 PM EST
[ Parent ]
Sounds like you're right. I'll be damned. I could've sworn that Nice contained those provisions.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Fri Jul 3rd, 2009 at 05:30:15 PM EST
[ Parent ]
Frank Schnittger:
The most a German Court could do is require a modification of the German Constitution in conformance with EU law.
Right. Except in the case of a treaty, where the constitutional court can actually halt ratification.

A man of words and not of deeds is like a garden full of weeds; a man of deeds and not of words is like a garden full of turds — Anonymous
by Migeru (migeru at eurotrib dot com) on Fri Jul 3rd, 2009 at 11:30:50 AM EST
[ Parent ]
Precisely because a new Treaty may further increase the competence of the EU at the expense of German political institutions operating under the German constitution.  However existing Treaties are subject to ECJ interpretation and enforcement.

notes from no w here
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Jul 3rd, 2009 at 11:47:03 AM EST
[ Parent ]
You know, this might be a fine point for constitutional scholars.

Frank Schnittger:

Unless the EU Directive is not in conformance with EU law as interpreted by the ECJ, a member state must implement it as EU law takes precedence even over the constitution of member states.
Do you know since which EU treaty this is the case?

A man of words and not of deeds is like a garden full of weeds; a man of deeds and not of words is like a garden full of turds — Anonymous
by Migeru (migeru at eurotrib dot com) on Fri Jul 3rd, 2009 at 11:47:49 AM EST
[ Parent ]
As far as I am aware, it was always thus.  CF Thus Irish Constitutional amendment on membership...
Third Amendment of the Constitution of Ireland - Wikipedia, the free encyclopedia
The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community(Euratom) (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.


notes from no w here
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Fri Jul 3rd, 2009 at 12:18:17 PM EST
[ Parent ]
You can only challenge the final act, here the act of parliament, in other situations the decision of the highest court possibly involved, not, as a rule, mere intermediate steps, such as the voyage of a minister to an international conference or the acquisition of paper in order to draft a bill. But the waiting time you can spend usefully with collecting arguments or money.

The Federal Constitutional Court (BVerfG) has produced many silly and problematic judgements. It conceived of a right of informational self-determination, but unfortunately it has to be exercised in other peoples computers; it found that it doesn't matter whether you live off your savings (if only going through an annuity insurance) or continue receiving payments for work done perhaps decades ago – for me the coup de grâce for the capitalist order in Germany; and finally it felt that the right of the government to incarcerate people without anything resembling a proper reason should not be curtailed.

Perhaps this is another one. The court was not amused to learn that the MPs would vote away long established rights and freedoms because  they "were told so." Therefore it required that the parliament give its assent to each and any (if I'm correctly informed) legislative act of the EU. This will lead to an impasse, if the EU Council of ministers decide an act against the vote of the German parliament; if the court sticks to this interpretation, the EU majority vote would have to give way to the German opinion.

But this is still, fundamentally in my opinion, only half the way. The German parliament would still suffer from the inability to introduce bills (shared by the EP, which will, however, be of lesser importance under this scheme). This is of the utmost importance, because  in this situation the premium for all kind of lobbyist is increased: it is very difficult for the polity to react against a legislative act, however silly or one-sided it might be.

So this decision doesn't really point to a viable future for the EU, but only towards more complications and possible roadblocks. In fact, it might prove the death-blow for the European project.

by Humbug (mailklammeraffeschultedivisstrackepunktde) on Thu Jul 2nd, 2009 at 06:33:35 PM EST
Humbug:
Therefore it required that the parliament give its assent to each and any (if I'm correctly informed) legislative act of the EU.

The FAZ article linked to above indicates that the BVerG requires that the Bundestag and/or Bundesrat be consulted on, and give their positive assent to changes in the EU legislative process - and not individual acts.

Specifically, it concerns the so-called bridge-clause, i.e. the transition from the requirement of unanimous decisions at the EU level to a (mere?) qualified majority.

The fact is that what we're experiencing right now is a top-down disaster. -Paul Krugman

by dvx (dvx.clt ät gmail dotcom) on Fri Jul 3rd, 2009 at 03:14:40 AM EST
[ Parent ]


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