Tuesday 30 June 2009

Karlsruhe Constitutional Judgment on the Lisbon Treaty

The German Constitutional Court (Bundesverfassungsgericht) has ruled that the Lisbon Treaty is compatible with German Constitutional Law (Grundgesetz) in a landmark case today. You can read the judgment in German here, or as a detailed summary in English here.

I've been away from the computer all day, so this post has been outpaced by the speed of the bloggosphere, which has thrown up some good analyses - I especially recommend Nosemonkey, Grahnlaw and Julien Frisch.

The case involved 2 pieces of legislation: 1. the Act ratifying the Lisbon Treaty (verdict: constitutional); 2. an Act detailing the involvement of the German Parliament in the EU system (unconstitutional).

Julien Frisch has hit the nail on the head when it comes to the bottom-line in this judgment: the Lisbon Treaty was ruled constitutional, but national legislation was ruled unconstitutional for being insufficiently democratic. The effective thrust of the Court's reasoning is an attack on how the Council works with regard to Germany: the executive is too powerful here, and the Parliament should have more say over the German representation in the Council.

In many ways this judgment highlights how democratic oversight of the EU's legislative work is at the discretion of the member state, and that purely national measures can have a big impact on this: it's not the EU's competence to set the procedure or manner of parliamentary input into the Council. There will now be a revision of the unconstitutional law to bring it into line with the judgment (i.e. increase the Bundestag's influence over the German delegation to the Council). Until there is a national law satisfying the judgment, the Lisbon Treaty will not be completely ratified by Germany.

The Court also stated the legal position in several areas:

- The EU is a union of states, and its authority derives from the states via the principle of conferral.
- The EP has not developed enough politically to support a democratically legitimate government. (Though if the political requirements that the court mentions [basically effective party politics], then the court's opinion could change there).
- The Lisbon Treaty does not make the EU Constitutional Treaties (Rome and Maastricht) "self-amending".
- Turning the EU into a federation (rather than a federation of states - "Staatverbund" - which it currently is), would require constitutional change in Germany and a referendum.
- The member states' status of sovereignty is not affected by the Treaty of Lisbon.
- Further integration short of establishing a federation(and which leaves the member states in control of the development of social policy, etc., effecting citizens) is compatable with the constitution provided there's sufficient democratic involvement of the elected state institutions.
- The Lisbon Treaty does not give the EU a say over the deployment/use of armed forces.

Hopefully this judgment will have a positive influence on any future treaty reforms in pushing for increased democratization of the EU generally, but also in forcing the Council to be more open and accountable (at least to national parliaments). In many ways this judgment seems to have given the EU a better and more holistic and citizen-centred review than those who are negotiating and drawing up treaty reforms. If the rationale behind the EU is to benefit the states and citizens through economic integration, then reforms should be focused on making the decision making process more open and participatory. Any bets on that happening?

Update: The Bundesverfassungsgericht judgment could have an impact in the Irish Lisbon referendum; it should be noted that it effectively dismisses many of the No side's arguments from last time, especially the more alarmist ones. Also note that the judgment confirms that the guarantees that have been won for the next referendum are unnecessary in the legal sense (i.e. they restate the legal situation under the Lisbon Treaty as it was pre-guarantee). The only practical change for the second vote is that each member state will retain a Commissioner (as opposed to the legal position under the current Nice Treaty).

For a more in-depth analysis, Gavin Barrett, a lecturer in European Law at University College Dublin, has written an article on the subject here.


  1. It is fortunate that the judgement of the court coincides with the holiday silly season. If this were not the case, some of the language it contains would have set alarm bells ringing across Europe. It is not for the constitutional court of any Member State, least of all Germany's, to seem to dictate the course of European integration. Luckily, all the present governments within the EU are agreed that the Lisbon Treaty is the best compromise that can be achieved and the judgement does not disturb this agreement.

  2. The BverfG has always been quite influential in the European system - its rulings on human rights and Community law probably pushed the ECJ into giving the ECHR more consideration in its rulings to prevent a head-on clash with the BverfG.

    While the court is indicating a limit on the extent of EU constitutional reform through simple Treaty amendment, it isn't really dictating the course of integration. The court's thorough judgment puts paid to many of the anti-Treaty side's arguments, so in a way it has strengthened the political hand of the Yes side.