For years to come, Germany’s role in Europe will be determined by the Constitutional Court’s ruling.
The ruling that Germany’s Constitutional Court made on the Treaty of Lisbon and its accompanying law is one that could very well have negative consequences for the future of the European Union.
Its conclusion that the treaty is compatible with the Basic Law (Grundgesetz) was a good thing. But on a range of issues, the court made statements that pose problems, among them its view that the accompanying law defining the involvement of the Bundestag in Germany’s European policy was deficient.
That law, the Constitutional Court ruled, goes against the Grundgesetz because it does not give the Bundestag enough participatory rights in fundamental EU decisions. It therefore required it to be amended before Germany could ratify the Lisbon treaty, a task the German parliament is due to complete in the coming weeks.
The participation of national parliaments in European politics is in the spirit of the Lisbon treaty, since their participation strengthens a citizen’s Europe and the democratic controls within the Union. Indeed, the treaty itself aims to strengthen the role of national parliaments in European politics.
But there are limits to their role, limits evident in the political debate since the ruling. Bavaria’s Christian Social Union (CSU) wants, for instance, to stipulate a range of issues on which the government would need to secure a mandate from parliament before it could take EU-level decisions on Germany’s behalf.
Imperative mandates, as they are called, are simply not an option. With 27 member states, a great number of EU decisions have to be a compromise. For this, governments need to be able to act with a certain amount of flexibility in the EU’s Council of Ministers. Without such flexibility, a number of EU initiatives such as the Erasmus programme and the environment and chemicals agencies would not have been possible.
If not, there is a very real risk of paralysis in the EU: waiting for the decisions of 27 national parliaments would put the brakes on the EU’s ability to solve problems and to innovate quickly.
What appears to have driven the Constitutional Court to its decision to give Germany’s national parliament an enhanced and important role is a belief that the European Parliament is a second-class parliament.
Of course, the EU is made up of member states and those states alone can transfer powers to it – and it is important that national parliaments are involved in that process of transfer. However, as soon as those powers have been transferred, the Parliament and the Council are fully legitimated to decide within their competences. The Parliament is, therefore, not a second-class parliament.
The court criticised the Parliament on the grounds that it is not representative enough, pointing to the differences in the weight of individual votes in different countries and arguing that it is too weak in the Union’s institutional system to have the legitimacy to make central political decisions.
Effectively...the court is putting itself before the European Court of Justice in Luxembourg
But this does not give due credence to the reason for differences in voting weights: this is a result of the Union’s unique form, a form it has assumed to ensure that citizens of even the smallest member state are duly represented.
There is another point in the ruling that creates an unnecessary threat to the Union’s cohesion. The court stated that it retains the right to decide ultimately on European legal issues.
Effectively, this means that the court is putting itself before the European Court of Justice in Luxembourg, should a conflict over a European norm arise.
A national constitutional court developing an independent jurisdiction upon European law would effectively mean the disintegration of the legal community that is the European Union, where rules and norms are binding for every member state and where only one court on the European level has the legitimacy to resolve conflicts.
The Bundestag is doing what it has to do – taking the demands of the court into due consideration – but in re-drafting the accompanying law, it is being careful to avoid the excessive demands made by political forces such as the CSU.
That offers some reassurance, but it is already evident that the role that Germany will play in the EU will for years to come be determined by the shape of the new accompanying law and by its application by the Bundestag and the Bundesrat.
The court has always been very eager to secure the foundations of the German state in the process of European integration, an eagerness previously demonstrated in its decision on the Maastricht treaty. This time though, it has overdone it.
German socialist MEP Jo Leinen chaired the constitutional affairs committee in the last European Parliament and now chairs the environment, public health and food safety committee.