Professor Dirk Lehmkuhl has analysed the recent decision of the German Constitutional Court on the Lisbon Treaty for “l’Europe en débat”. This is the second part of his contribution (the first part is available here). Dirk LEHMKUHL studied political science at the University of Constance and gained his PhD from the European University Institute. He occupied various positions as research fellow and lecturer at the universities of Bielefeld, Bern, Luzern and Zürich, as well as at the Max Planck Institute. He currently holds the Chair of European Politics at the University of St Gallen. His current areas of research include the European transport policy, the Governance of the European Union’s external relations, especially in the neighbourhood, as well as the Legalisation of International Relations.
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Interestingly, the German court did not stop by what a colleague
called a “kick in the butt” of the German parliamentarians to take a more active stance in EU affairs [this should be a hyperlink]. Rather, there is a second, and perhaps more dramatic element that actually is new in the history of reasoning of the Constitutional court on EU affairs. The focus is of this new element is less on great historic decisions or treaty reforms, but on day-to-day interactions, small decisions and numerous directives and regulations that characterize the way in which European integration really takes place. So far, it was in the responsibility of the European Court of Justice to review whether or not the EU acts within the limits of its powers. No longer so. With its recent judgment, the German Federal Constitutional Court arrogates the power to review not only the primary law of European treaties, but also the secondary law of the EU for its compatibility with the non-derogable core of the German constitution (“unantastbare Kerngehalt der Verfassungsidentität”).
So how then to interpret the Court’s verdict on the Lisbon Treaty? Is it dramatic, sensational or can we just as Mr. Klaus did dismiss it as predictable? For one thing, with its ‘yes, but’ decision, the Court approved the Lisbon Treaty but delayed its ratification. It is likely that the Bundestag will hold special sessions to approve the necessary amendment, probably before September”s federal elections in Germany. As a consequence, Mr. Klaus who has announced he will sign the treaty as the last man in Europe has to put all his hope on a negative outcome of the second Irish referendum. Nevertheless, there are at least three interesting aspects that may impact on the integration process in Europe.
To start with, the Court decision is a blow to all those who see a strengthening of the European Parliament as the panacea to the Union’s democratic deficit. The verdict hit the European Parliament only a few days after it has send the signal as being the first EU institution to be led by a politician of Europe’s former communist countries. This election was not only meant to be a symbol for the Parliament’s contribution to the integration process, but also as a signal for the recovery after the sobering results of recent election to the European Parliament in mid-June, with their very low turnout of voters and the success of populist Eurosecptic groupings.
Secondly, the German Constitutional Court’s stance as the guardianship authority for national parliamentary rights might not be limited to German parliamentarians. Indeed, the impact of the verdict might have a substantial impact on the future integration process if also other than German parliamentarians might felt kicked and take a more active stance when it comes to the transfer of sovereignty rights of their country in the future. Whether or not one does like this scenario depends on the general attitude on the integration process, its speed and its breadth.
Finally, a yet much less debated but potentially very dramatic impact of the judgment refers to the arrogation of the competence of the German Federal Constitutional Court to review EU secondary law. With this arrogation it clearly took a big step into the territory of the European Court of Justice. It remains to be seen whether the European Court takes this step as a declaration of war and what implications this move might have for the integration process as such.
Links to Comments and Reactions to the Court Judgment:
by Dirk Lehmkuhl (30.7.2009)
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