German Constitutional Concerns

KINGVictor

I came across this interesting article in the Economist today.

http://www.economist.com/world/europe/displaystory.cfm?story_id=14098459

Essentially,the post states that the German courts have reservations with the fact that the EU is not a democratic state and the European Parliament is not a proper legislature, they imply that Germany must therefore retain the power to shape “citizens’ circumstances of life” in such areas as criminal law, taxation, education and religion....
however the Government want to ratify the treaty before their federal elections and more importantly before the Irish vote.However In the meantime, the court’s robust defence of national sovereignty may make the EU more palatable to Eurosceptics everywhere.

So it is not plain sailing/water-tight and been given a clean bill of health as previously suggested on this forum.

Inputs would be appreciated.

WinstonSmith

Perhaps I'm missing something here and somebody could enlighten me. If the Lisbon treaty is passed and the Legislature for the EU is moved to Brussels, what controls and checks are there in place to ensure uniformity across the Legislature, Executive and Judiciary in the dozens of countries which are members of the EU? As you can no doubt tell I'm not completely ofay with the Lisbon treaty so enlightenment on this point would be appreciated.

P. Breathnach

Consider the possibility that the Economist has got it wrong.

Der Spiegel interperets the same ruling differently: http://www.spiegel.de/international/europe/0,1518,633414,00.html, as does this blog with a particular focus on the EU: http://www.jcm.org.uk/blog/?p=2322, as does also this blog with a special focus on EU law: http://eulaw.typepad.com/eulawblog/2009/07/german-constitutional-court-and-lisbon-treaty-ratification.html, which says

The Constitutional Court concluded that there was no incompatibility between the Lisbon Treaty and the Basic Law and therefore the Federal Republic could in principle complete the ratification process without a problem.

And, of course, Scofflaw knows.

marco_polo

In essence it is as follows

Basically the Lisbon Treaty is compatable with German Law and the court want guarantees in law that parliament will have to vote on any changes to the Lisbon Treaty, or any expansion of EU competencies that impacts on German sovereignty.

http://www.irishtimes.com/newspaper/world/2009/0701/1224249838658.html

GERMANY’S HIGHEST court dismissed constitutional challenges to the Lisbon Treaty yesterday but called for ratification to be delayed until the rights of the German parliament in EU decision-making are strengthened.

Berlin now faces the challenge of getting the required law change through parliament before general elections in September – only then can president Horst Köhler sign the ratification Bill into law.

“The German constitution permits transfer of sovereign powers to an interstate body like the EU, but does not permit entry to a European federal state,” said constitutional court vice-president Andreas Vosskuhle. “The treaty of Lisbon changes nothing in that the Bundestag remains the representative organ of the German people.”

Foreign minister Frank Walter Steinmeier welcomed the verdict that the treaty was compatible with Germany’s constitution.

“The court has given us some homework to take with us, and we have to take it seriously,” he said.

“I’m confident we can make sure that ratification will take place this year.”

In a unanimous verdict, the eight-judge panel dismissed complaints from six parties that the Lisbon Treaty would dilute German parliamentary power and curtail constitutional rights in favour of a state-like EU entity.

In a 147-page ruling, they tackled the complaints at their common root: the claim of a democratic deficit at the heart of the European Union.

The flaw in this claim, the judges said, was trying to measure the legitimacy of a supranational organisation using the democratic yardstick of a sovereign state.

The EU conforms with broad democratic principles, the court said, precisely because it does not slavishly copy state-level democratic structures, operating instead as a “union of sovereign democratic states”.

Not even the European Parliament, equipped with new powers in Lisbon, can overcome a “insoluble democratic deficit” inherent in the interplay between the national and supranational.

With no immediate solution to hand, the court proposed two controls: greater oversight for Germany’s two houses of parliament, the Bundestag and the Bundesrat; and the court itself will keep up its “watch that the community or union’s authority do not . . . transgress competences conferred on it”.

The court’s condition for ratification puts Berlin under the gun: at a push, the government can formulate a law and have it through both houses of parliament by September 18th, nine days before the general election. Fresh court challenges in Karlsruhe could delay ratification into the next parliament, after the Irish referendum.

Speculation was rife in Karlsruhe yesterday about whether the ruling would send a signal around the union for greater co-determination by parliaments.

“Previous EU rulings had tough language and a mild effect, this ruling uses mild language but may have a tough long-term effect,” said Jan Techau, director of Berlin’s Alfred von Oppenheim Centre for European Policy Studies.

German MPs and representatives of Germany’s federal states in court yesterday said they would welcome greater participation rights. “But I can’t see parliament being able to put the government in a policy straitjacket at EU summits, like the Danes,” said one state official.

Elsewhere in the verdict were precise readings of treaty issues of concern to Irish voters. “The wording . . . does not oblige member states to provide national armed forces for European Union military deployments,” said the judges.

They added that member states would retain control of crucial competences from criminal law to tax law.

KINGVictor

P. Breathnach wrote: »

Consider the possibility that the Economist has got it wrong.

Der Spiegel interperets the same ruling differently: http://www.spiegel.de/international/europe/0,1518,633414,00.html, as does this blog with a particular focus on the EU: http://www.jcm.org.uk/blog/?p=2322, as does also this blog with a special focus on EU law: http://eulaw.typepad.com/eulawblog/2009/07/german-constitutional-court-and-lisbon-treaty-ratification.html, which says
And, of course, Scofflaw knows.

I am not disputing the contents of court ruling and I dont think Economist was doing that either.The article is mainly looking at the outcome of the court ruling.


Excerpts below:

The treaty is supposed to make the EU function more smoothly, she claims. But the Christian Social Union (CSU), the Bavarian wing of Ms Merkel’s Christian Democratic Union (CDU), has seized on the proposed new law to pander to Eurosceptic voters. It has demanded that big EU decisions, including the admission of new members, be put to referendums; suggested that the next European Commission should not include an enlargement commissioner; and called for the introduction of a system of “integration control” by the Constitutional Court.

and also

The court has a history of approving EU integration with reservations. But this time, in language reminiscent of 19th-century nationalism, it argued that “no uniform European people” could “express its majority will in a politically effective manner”. The European Parliament, in which voters from small countries such as Malta have far more weight than Germans, is not up to the job. So the court wants to ensure that Germany does not surrender to the EU any of the core powers of a democratic state. By its ruling, the court sets itself up as final arbiter of further EU integration (and even of rulings by the European Court of Justice), argues Christian Calliess of the Free University in Berlin. That could threaten the EU’s main function, to make and enforce European law.

marco_polo

KINGVictor wrote: »

I am not disputing the contents of court ruling and I dont think Economist was doing that either.The article is mainly looking at the outcome of the court ruling.


Excerpts below:

The treaty is supposed to make the EU function more smoothly, she claims. But the Christian Social Union (CSU), the Bavarian wing of Ms Merkel’s Christian Democratic Union (CDU), has seized on the proposed new law to pander to Eurosceptic voters. It has demanded that big EU decisions, including the admission of new members, be put to referendums; suggested that the next European Commission should not include an enlargement commissioner; and called for the introduction of a system of “integration control” by the Constitutional Court.

and also

The court has a history of approving EU integration with reservations. But this time, in language reminiscent of 19th-century nationalism, it argued that “no uniform European people” could “express its majority will in a politically effective manner”. The European Parliament, in which voters from small countries such as Malta have far more weight than Germans, is not up to the job. So the court wants to ensure that Germany does not surrender to the EU any of the core powers of a democratic state. By its ruling, the court sets itself up as final arbiter of further EU integration (and even of rulings by the European Court of Justice), argues Christian Calliess of the Free University in Berlin. That could threaten the EU’s main function, to make and enforce European law.

This is not having aimed at you in particular KINGVictor, just thinking out loud here.

But to me what this really shows that there are limits to the amount of intergration that even the very pro European Germans are prepared to accept, and they have no wish to go down the route of a Federal Europe. Like allmember state they have their doubts and fears of giving away too much power.

And yet you will have some who will claim that this is exactly what the Big countries / EU Elite (whoever they are) are secretly planning for us after Lisbon (Without ever specifying how of course ).


Does anyone have a link to the entire judgement btw?

Scofflaw

KINGVictor wrote: »

I am not disputing the contents of court ruling and I dont think Economist was doing that either.The article is mainly looking at the outcome of the court ruling.


Excerpts below:

The treaty is supposed to make the EU function more smoothly, she claims. But the Christian Social Union (CSU), the Bavarian wing of Ms Merkel’s Christian Democratic Union (CDU), has seized on the proposed new law to pander to Eurosceptic voters. It has demanded that big EU decisions, including the admission of new members, be put to referendums; suggested that the next European Commission should not include an enlargement commissioner; and called for the introduction of a system of “integration control” by the Constitutional Court.

and also

The court has a history of approving EU integration with reservations. But this time, in language reminiscent of 19th-century nationalism, it argued that “no uniform European people” could “express its majority will in a politically effective manner”. The European Parliament, in which voters from small countries such as Malta have far more weight than Germans, is not up to the job. So the court wants to ensure that Germany does not surrender to the EU any of the core powers of a democratic state. By its ruling, the court sets itself up as final arbiter of further EU integration (and even of rulings by the European Court of Justice), argues Christian Calliess of the Free University in Berlin. That could threaten the EU’s main function, to make and enforce European law.

To give you an idea of how wrong the author is, and how partial his reading of the judgement summary is, let's examine the origin of the bit I've bolded, which the the author has put forward as the court saying that there can't be a European demos. It's from the summary, not the judgement itself (which is here).

This is what the author claims the judgement says:

But this time, in language reminiscent of 19th-century nationalism, it argued that “no uniform European people” could “express its majority will in a politically effective manner”.

This is what the judgement actually says:

As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority.

What the court says is not what the author says it says - he's literally taken two sub-clauses out of the statement above, stitched them together with a word he himself has interjected, and produced an entirely new meaning.

What the court is saying is part of a longer consideration of the role and structure of the Parliament, in which the court makes the point that the Parliament is not currently constituted as representing the citizens of Europe on the one person one vote basis that is a basic requirement of democracy, because the EU is not a state, but a treaty-based international organisation with certain characteristics of a state:

the European Parliaments factually remains, due to the Member State’s contingents of seats, a representation of the peoples of the Member States. The degressively proportional composition that Article 14.2(1) sentence 3 TEU Lisbon prescribes for the European Parliament stands between the principle under international law of the equality of states and the state principle of electoral equality

and therefore:

no independent people’s sovereignty of the citizens of the Union in their entirety results from the competences of the European Union. If a decision between political lines in the European Parliament receives a narrow majority, there is no guarantee of the majority of votes cast representing a majority of the citizens of the Union. Therefore the formation, from within Parliament, of an independent government vested with the competences that are usual in states would meet with fundamental objections.

Now, that does not simplify down in any way to the author's claim that the a European demos cannot exist - it states that the Parliament, as it is currently constituted, cannot be held to represent a European demos, because it is a compromise between the principle of "one person one vote" and "one state one vote", because:

This consideration at the same time clarifies why representation in the European Parliament does not take as its nexus the equality of the citizens of the Union (Article 9 TEU Lisbon) but nationality, a criterion that is actually an absolutely prohibited distinction for the European Union. For political projects such as the economic union being able to succeed, it has been a central idea of the European union of integration since its foundation to prohibit or restrict discrimination on grounds of nationality.

...

But it is exactly the criterion of nationality which is intended to be decisive pursuant to Article 14.2(1) sentence 3 TEU Lisbon when it comes to assigning the citizens’ possibility of exerting influence in the European Union. The European Union thus shows an assessment of values that is in contradiction to the basis of the concept of a citizens’ Union that it has of itself; this contradiction can only be explained by the character of the European Union as an association of sovereign states.

Whatever about the legal claims of Christian Calliess, the article contains very fundamental misreadings, which result, as far as I can see, from skimming the text of the summary judgement with an eye to supporting a conclusion already formed.

To paraphrase this bit:

As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority.

As long as the European Parliament is not constituted on the basis of one citizen one vote, the Parliament does not represent a uniform European electorate, but the peoples of the Member States in their national electorates, and therefore cannot form the basis of a democratic federal European state.

However, one of the other major conclusions of the Court is that Lisbon neither creates a federal European state, nor attempts to do so, nor represents a will to form such a state.

As to the view that the Court has constituted itself the "final arbiter of further integration" - the national constitutions of the member states are the final arbiter of integration, and the fact that this comes as a surprise to someone suggests they have a deep misunderstanding of the relationship between the EU and the member states. The German Court is obviously the final arbiter of whether Germany can ratify an EU treaty, otherwise it wouldn't have been hearing the case in the first place. The same applies here - the Crotty judgement was likewise a judgement on whether Ireland could ratify an EU treaty, and a determination of what was required from the government before it could do so. As the judgement also says:

The Member States remain the masters of the Treaties.

er, with apologies,
Scofflaw

KINGVictor

Scofflaw wrote: »

To give you an idea of how wrong the author is, and how partial his reading of the judgement summary is, let's examine the origin of the bit I've bolded, which the the author has put forward as the court saying that there can't be a European demos. It's from the summary, not the judgement itself (which is here).

This is what the author claims the judgement says:



This is what the judgement actually says:



What the court says is not what the author says it says - he's literally taken two sub-clauses out of the statement above, stitched them together with a word he himself has interjected, and produced an entirely new meaning.

What the court is saying is part of a longer consideration of the role and structure of the Parliament, in which the court makes the point that the Parliament is not currently constituted as representing the citizens of Europe on the one person one vote basis that is a basic requirement of democracy, because the EU is not a state, but a treaty-based international organisation with certain characteristics of a state:



and therefore:



Now, that does not simplify down in any way to the author's claim that the a European demos cannot exist - it states that the Parliament, as it is currently constituted, cannot be held to represent a European demos, because it is a compromise between the principle of "one person one vote" and "one state one vote", because:



Whatever about the legal claims of Christian Calliess, the article contains very fundamental misreadings, which result, as far as I can see, from skimming the text of the summary judgement with an eye to supporting a conclusion already formed.

To paraphrase this bit:



As long as the European Parliament is not constituted on the basis of one citizen one vote, the Parliament does not represent a uniform European electorate, but the peoples of the Member States in their national electorates, and therefore cannot form the basis of a democratic federal European state.

However, one of the other major conclusions of the Court is that Lisbon neither creates a federal European state, nor attempts to do so, nor represents a will to form such a state.

As to the view that the Court has constituted itself the "final arbiter of further integration" - the national constitutions of the member states are the final arbiter of integration, and the fact that this comes as a surprise to someone suggests they have a deep misunderstanding of the relationship between the EU and the member states. The German Court is obviously the final arbiter of whether Germany can ratify an EU treaty, otherwise it wouldn't have been hearing the case in the first place. The same applies here - the Crotty judgement was likewise a judgement on whether Ireland could ratify an EU treaty, and a determination of what was required from the government before it could do so. As the judgement also says:



er, with apologies,
Scofflaw

I applaud your analysis...but you havent addressed the fact that the outcome is leading to some form of discontent from some political parties...and most importantly the German citizens.

like I quoted earlier..


But the Christian Social Union (CSU), the Bavarian wing of Ms Merkel’s Christian Democratic Union (CDU), has seized on the proposed new law to pander to Eurosceptic voters. It has demanded that big EU decisions, including the admission of new members, be put to referendums; suggested that the next European Commission should not include an enlargement commissioner; and called for the introduction of a system of “integration control” by the Constitutional Court.


and

But even pro-Europeans have embraced the court’s call to assume more responsibility. Markus Löning of the liberal Free Democrats thinks the Bundestag should weigh in not only on transfers of power but also on directives and the admission of new countries. Places like Austria and Finland give their parliaments more say without tying negotiators’ hands, he notes. He complains that the German government “wants to make the new law as limited as possible”.


I would love clarification on those...thanks.

marco_polo

KINGVictor wrote: »

I applaud your analysis...but you havent addressed the fact that the outcome is leading to some form of discontent from some political parties...and most importantly the German citizens.

like I quoted earlier..


But the Christian Social Union (CSU), the Bavarian wing of Ms Merkel’s Christian Democratic Union (CDU), has seized on the proposed new law to pander to Eurosceptic voters. It has demanded that big EU decisions, including the admission of new members, be put to referendums; suggested that the next European Commission should not include an enlargement commissioner; and called for the introduction of a system of “integration control” by the Constitutional Court.

and

But even pro-Europeans have embraced the court’s call to assume more responsibility. Markus Löning of the liberal Free Democrats thinks the Bundestag should weigh in not only on transfers of power but also on directives and the admission of new countries. Places like Austria and Finland give their parliaments more say without tying negotiators’ hands, he notes. He complains that the German government “wants to make the new law as limited as possible”.

I would love clarification on those...thanks.

I doesn't say anything about discontent of german citizens? All of the rest is internal German politics so I am not sure what you are trying to say? One party thinks that parliament should have even more powers, and the other things that Germany should hold referendums?

KINGVictor

This would also be an intereseting reading on the German Court ruling.



http://www.entangledalliances.com/2009/07/german-constitutional-court-rules-on-lisbon/

KINGVictor

marco_polo wrote: »

I doesn't say anything about discontent of german citizens? All of the rest is internal German politics so I am not sure what you are trying to say? One party thinks that parliament should have even more powers, and the other things that Germany should hold referendums?

Sorry the question was directed at Scoff...

Scofflaw

KINGVictor wrote: »

I applaud your analysis...but you havent addressed the fact that the outcome is leading to some form of discontent from some political parties...and most importantly the German citizens.

like I quoted earlier..


But the Christian Social Union (CSU), the Bavarian wing of Ms Merkel’s Christian Democratic Union (CDU), has seized on the proposed new law to pander to Eurosceptic voters. It has demanded that big EU decisions, including the admission of new members, be put to referendums; suggested that the next European Commission should not include an enlargement commissioner; and called for the introduction of a system of “integration control” by the Constitutional Court.


and

But even pro-Europeans have embraced the court’s call to assume more responsibility. Markus Löning of the liberal Free Democrats thinks the Bundestag should weigh in not only on transfers of power but also on directives and the admission of new countries. Places like Austria and Finland give their parliaments more say without tying negotiators’ hands, he notes. He complains that the German government “wants to make the new law as limited as possible”.


I would love clarification on those...thanks.

I'm not sure there's any clarification needed, as such. The court required a greater degree of control by the German Bundestag over their Ministers when their Ministers are voting (or deciding/negotiating) on the Council of Ministers. That seems entirely reasonable - a greater degree of control over our national governments when they're in Europe is an obvious thing to want.

The various political calls for this and that are just that, though - political calls for this and that, aimed at particular voter segments the different parties target. They're not meaningful unless they produce a result.

In a sense - and I've said this before - the Crotty judgement is a bit of a crock compared to the German approach. It's a sort of total solution to any constitutional problems that EU treaties may pose (which is, no doubt, why the government likes them) - once we've amended our Constitution to allow ratification of a given EU treaty, we can no longer subject it, and its consequences, to the kind of constitutional fine-tuning that the German court has just completed, because the referendum gives the ratification exactly the same status as the rest of the Constitution.

In contrast, the German court has said that their parliament may ratify, but only with certain additional internal safeguards to maintain an appropriate degree of democratic control. That's a result it's difficult for a referendum to deliver, because the government dictates the terms of the referendum. Referendums are, in essence, blank cheques. It's worth thinking about that when people are calling for referendums across Europe.

I'm sure, of course, that some people will take that to mean we should vote No in this referendum rather than give the government a blank cheque - but that's foolish, because it applies to all referendums that deal with complex issues. If you're going to take it up that way, you need to see that you should always vote No in a referendum - Lisbon, Children's Referendum, whatever. The point is that referendums shouldn't really be used in the way we're currently using them, because they're simply too blunt an instrument, and too powerful, because they're not susceptible of legal challenge after the fact. If Lisbon were ratified by the Oireachtas, it could be challenged afterwards as unconstitutional, and democratic safeguards required to make it so, exactly as the German judgement has done - instead, the power of the referendum puts the ratification beyond challenge. Crotty delivered too much, too soon - all it did was show how to paper over the democratic deficit by applying the sovereign power of the people to bridge the gap.

cordially,
Scofflaw

KINGVictor

Scofflaw wrote: »

I'm not sure there's any clarification needed, as such. The court required a greater degree of control by the German Bundestag over their Ministers when their Ministers are voting (or deciding/negotiating) on the Council of Ministers. That seems entirely reasonable - a greater degree of control over our national governments when they're in Europe is an obvious thing to want.

The various political calls for this and that are just that, though - political calls for this and that, aimed at particular voter segments the different parties target. They're not meaningful unless they produce a result.

In a sense - and I've said this before - the Crotty judgement is a bit of a crock compared to the German approach. It's a sort of total solution to any constitutional problems that EU treaties may pose (which is, no doubt, why the government likes them) - once we've amended our Constitution to allow ratification of a given EU treaty, we can no longer subject it, and its consequences, to the kind of constitutional fine-tuning that the German court has just completed, because the referendum gives the ratification exactly the same status as the rest of the Constitution.

In contrast, the German court has said that their parliament may ratify, but only with certain additional internal safeguards to maintain an appropriate degree of democratic control. That's a result it's difficult for a referendum to deliver, because the government dictates the terms of the referendum. Referendums are, in essence, blank cheques. It's worth thinking about that when people are calling for referendums across Europe.

I'm sure, of course, that some people will take that to mean we should vote No in this referendum rather than give the government a blank cheque - but that's foolish, because it applies to all referendums. If you're going to take it up that way, you need to see that you should always vote No in a referendum - Lisbon, Children's Referendum, whatever. The point is that referendums shouldn't really be used in the way we're currently using them, because they're simply too blunt an instrument, and too powerful, because they're not susceptible of legal challenge after the fact. If Lisbon were ratified by the Oireachtas, it could be challenged afterwards as unconstitutional, and democratic safeguards required to make it so, exactly as the German judgement has done - instead, the power of the referendum puts the ratification beyond challenge. Crotty delivered too much, too soon - all it did was show how to paper over the democratic deficit by applying the sovereign power of the people to bridge the gap.

cordially,
Scofflaw

Respectfully ...I didn't get you at all...The quoted post focused on Opposition parties expressing their reservations about Enlargement issues and also formulating a constitutional framework for integration control.


You said that the German would get internal safeguards in their national constitution as a result of the court decision which you felt was a better MO than a referendum.My question now is are those internal safeguards if passed by the German Courts:

1. Be included in the Lisbon treaty or as legal guarantees
2.Be a matter for the European courts to decide at a future date
3.Be left to the German courts to determine if there are any oppositions to those safeguards.



I read your post and I think I understand it...but I need you to clarify it

Scofflaw

KINGVictor wrote: »

Respectfully ...I didn't get you at all...The quoted post focused on Opposition parties expressing their reservations about Enlargement issues and also formulating a constitutional framework for integration control.


You said that the German would get internal safeguards in their national constitution as a result of the court decision which you felt was a better MO than a referendum.My question now is are those internal safeguards if passed by the German Courts:

1. Be included in the Lisbon treaty or as legal guarantees
2.Be a matter for the European courts to decide at a future date
3.Be left to the German courts to determine if there are any oppositions to those safeguards.

I read your post and I think I understand it...but I need you to clarify it

Essentially, the German court required the amendment of Acts purely in their national law - the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters, to be precise. No change will be made to their constitution, and such law, being national, wouldn't be valid for inclusion in Lisbon, and wouldn't be a matter for the European courts. The court has ruled that the Act requires amendment before Lisbon may be ratified by Germany.

cordially,
Scofflaw