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German Constitutional Court approves Lisbon – with provisos

On Tuesday the Federal Constitutional Court ruled that the Lisbon Treaty is fundamentally compatible with the German Constitution – the Grundgesetz or Basic Law. The judgment is vast and verbose (German/English) but here’s a (still quite verbose) summary of it (German/English).

The court sees Lisbon as substantially increasing EU competence, but not to such a point as to extinguish German sovereignty. But because the EU’s structures are not fully democratic – Europe is not a real political society – it’s essential that national democratic institutions play a full part in European decision-making. For that reason, although Lisbon as a whole is okay, some of its provisions – in particular the new simplified procedure for amending the EU Treaties and the “passerelle” clauses by which member states will be able to give up the veto and move to qualified majority voting without specific Treaty amendment – can only be relied on constitutionally if both houses of the German Parliament, Bundestag and Bundesrat, give specific assent to their use.

The judgment is significant in several respects. First, the German Court is making clear that EU law can only be agreed to and operated by Germany to the extent that it is compatible with the Grundgesetz, and that it will be the judge of compatibility. It stresses that in its view this does not conflict with the EU law doctrine of the supremacy of EU law. Second, Lisbon passes that compatibility test – by far the most practically significant aspect of the decision, and something Angela Merkel will be mightily relieved by. Third, it creates a political problem for her and other pro-Lisbon leaders in that German ratification must now be delayed until laws are drafted to guarantee the relevant functions of the Bundestag and Bundesrat; that’s unwelcome, as it eases the pressure on Irish voters and Polish and Czech opponents of Lisbon, but a setback Merkel no doubt gladly accepts as the price for Lisbon’s approval. Here’s a report about political reactions in Germany.

Finally, though, and potentially most significantly, the judgment confirms and further elaborates the legal theory of conditional acceptance of EU law first established by the German Court in its famous Solange I and Solange II judgments, according to which Germany will only accept the supremacy of EU law “so long” as EU law guarantees the fundamental rights laid down in the Grundgesetz; and developed by the Court in its Maastricht judgment, according to which there is a theoretical limit to the EU’s power, defined in terms of its impact on national democratic sovereignty. This 2007 paper by Julio Baquero Cruz gives a good summary of those important earlier judgments: I agree with him that the Maastricht decision established an alternative paradigm of the relationship between the state and the EU which claims higher legitimacy that the EU’s own paradigm of supremacy; this Lisbon decision confirms that paradigm, which could be the foundation of reformist (some would say Eurosceptic) European legal thinking.

The real questions are whether the German Court would ever have the courage actually to rule against EU law on the basis of this theory; and whether EU leaders will believe in its readiness to do, at least sufficiently to be deterred from grabbing too much power. Only time will tell. But the German Constitutional Court is certainly the most powerful institution capable of asserting national power against that of the EU, and I’ve no doubt EU leaders take the risk of its displeasure much more seriously than they do the displeasure of voters in European Parliament elections or indeed in referendums.

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  1. This is actually a very interesting post! The doctrine that "Community" law is supreme has actually come about by decisions of the European Court of Justice (ECJ) and is not specifically provided for in the various Treaties. Of course, the ECJ has recognised that members states chose to restrict their individual powers within fields covered by the treaties. In effect, the members states transferred decision-making to the "communities."

    In making such transfer of power the members states must have done so on certain terms which have been largely unspoken. One such term is that the states have not surrendered sovereignty in its entirety since they have all retained the right to withdraw. Another term is that the transfer of powers is for the purposes expressed in the treaties and for nothing else. Untramelled power has not been granted to the EU. If that is right, then it follows that states have not granted the EU rights to act contrary to fundamentals such as universally recognised human rights (e.g. jus cogens).

    A simplistic way of looking at this would be to adopt a kind of officious bystander test who is stood alongside the states making the treaties. The bystander says – you have not mentioned basic rights for individuals, did you mean to exclude them? The answer would be – "Of course not." [c.f. Shirlaw Foundries Case – per MacKinnon LJ – [1939] 2 KB 206, 227].

    German Basic Law dates from 1949 and grants to the German People a considerable number of rights. It cannot be sensibly argued that the German people have somehow given the EU the authority to override those Basic Laws which, since the aftermath of World Ward 2, have been so important to the development of modern Germany as a democratic state.

    The Federal Constitutional Court has upheld this position in the "so long as" cases (Solange I – 1974 and II – 1994) and in other cases such as Brunner 1994.

    The Tanja Kreil case was of interest in that an ECJ ruling led to an amendment to the German constitution. However, that result was probably achieved only because the German legislature was prepared to concede and not refuse to follow the ECJ.

    Given German history it must be right that they must remain prepared to ensure that their basic law is protected.

    If I may say so Head of Legal, your last paragraph is good. Would Germany stand up to the EU? EU leaders do respect Germany for economic reasons. Of course, the European Parliament has limited real powers though it has influence.

  2. Thanks, Peter – yes, it's important stuff, this. Strange how the language barrier means this gets so little attention here, even though some people are very interested in these issues – though you have to say, the Germans do their best, by providing a translation, to help the world know. Can you imagine our Supreme Court doing that?

    I don't know about Tanja Kreil – can you tell us about it?

  3. Tanja Kreil – this link should get you the ECJ judgment:

    I hope that our Supreme Court does do translation of certain cases. The ones that come to mind from recent past would include Pinochet and the like. The decisions of the House of Lords are persuasive in every common law jurisdiction and, hopefully, so will be the Supreme Court. However, I feel we are losing something of value in this change which is, in my opinion, unnecessary and purely for appearances sake.

  4. Thanks – I'll read that when I get time. is it about arrest warrants? In that case it would ring a bell.

    I agree with you about the UKSC: it's a change done for no good reason. But it may have important cultural effects. Little things can sometimes have big consequences.

    And I reckon ideally all the main democracies' highest courts should translate their judgments into the official UN languages. That'd have the advantage of including Arabic.

  5. The facts of the Kreil case:

    In 1996 Miss Kreil applied for a voluntary post within the Bundeswehr involving duties
    in weapons electronic maintenance for which she was sufficiently qualified. Her application was rejected both by the Bundeswehr’s recruitment centre and its head staff office on the grounds that under German national law women are forbidden to serve in military positions which involve the use of arms. Miss Kreil brought an action in the Administrative Court of Germany claiming that her rejection on the grounds of sex was contrary to European Community law.

    The Administrative Court sought a preliminary ruling from the ECJ on the compatibility
    of German national law excluding women from armed service with Council Directive 76/207/EEC (Equal Treatment Directive).

    The ECJ ruling led to Germany altering its basic law so that women could serve in the military though they would not be forced to do so. [Ironically, it appears that Miss Kreil chose another career]!

    Changing the German Constitution did not, in the end, prove that difficult, in large part because the German government embraced the idea ex-
    panding the role of women in the military. Only one member of the Bundestag spoke
    against the ECJ decision as “a clear transgression” because the domain of the military
    did not fall under European Union authority. the basic law was amended within 10 months of the ECJ ruling.

    The case is referred to in this interesting article at page 709: