Germany, Lisbon and Due Process | 29 comments (29 topical, editorial, 0 hidden)

Re: Deutschland über alles (none / 0)

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 ]

Re: Deutschland über alles (4.00 / 2)

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 Carrie (migeru at eurotrib dot com) on Fri Jul 3rd, 2009 at 09:30:32 AM EST
[ Parent ]

Re: Deutschland über alles (none / 1)

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
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Re: Deutschland über alles (4.00 / 2)

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
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Draft LTE (none / 1)

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
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Re: Deutschland über alles (none / 0)

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
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Re: Deutschland über alles (none / 1)

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 Carrie (migeru at eurotrib dot com) on Fri Jul 3rd, 2009 at 11:13:30 AM EST
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Re: Deutschland über alles (none / 0)

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
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Re: Deutschland über alles (4.00 / 2)

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
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Re: Deutschland über alles (none / 0)

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
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Re: Deutschland über alles (none / 1)

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 ]

Re: Deutschland über alles (none / 0)

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 ]

Re: Deutschland über alles (none / 0)

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 ]

Re: Deutschland über alles (none / 1)

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 ]

Re: Deutschland über alles (none / 0)

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 ]

Re: Deutschland über alles (none / 0)

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 Carrie (migeru at eurotrib dot com) on Fri Jul 3rd, 2009 at 11:30:50 AM EST
[ Parent ]

Re: Deutschland über alles (none / 1)

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 ]

Re: Deutschland über alles (4.00 / 2)

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 Carrie (migeru at eurotrib dot com) on Fri Jul 3rd, 2009 at 11:47:49 AM EST
[ Parent ]

Re: Deutschland über alles (none / 1)

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 ]

Germany, Lisbon and Due Process | 29 comments (29 topical, 0 editorial, 0 hidden)

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