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

Re: Deutschland über alles (none / 0)

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 ]

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
[ Parent ]

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
[ Parent ]

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
[ Parent ]

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
[ Parent ]

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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