German Constitutional Court Raises Some Questions on Lisbon and Democracy.

wheels of ire

There is an interesting essay on the International Spiegel site today. (http://tinyurl.com/muxs6j )

It is quite a long and thoughtful piece on what the Lisbon treaty means in the light of the decision of the Judges of the German Constitutional Court concerning the Lisbon Treaty.
It seems these judges, who I would hardly imagine to be wild-eyed radicals, have had a few worries about the implications of the Lisbon treaty for democracy. Needless to say, the Germans are a bit touchy about democracy. They are not too keen on referendums either, as the Nazis used populist referendums to justify their policies.

This judgment got precious little coverage here for some reason. I would be interested to hear what the rest of you think.

Scofflaw

A more detailed link would be nice - I got an article entitled "Pubic Shaving Trend Baffles Experts".

I'm currently reading the German judgement. So far I haven't been at all impressed with the journalism on it, which tends to have picked up a couple of phrases out of context and built articles around them that are almost entirely contrary to the sense of the judgement. And Der Spiegel has largely led that trend.


cordially,
Scofflaw

oncevotedff

The judgement was delivered on June 30th and was reported in the Irish Times, at least. Basically the Court said Lisbon was fine but that the government must introduce a law that makes it mandatory to review every power that is devolved to the EU. Or something like that anyway.

wheels of ire

Fair point and I am sorry For some reason my PC has decided not to let me access the Spiegel site. Yes, my ISP is Eircom but suspect my router but the usual solution of unplugging etc didn't work with this site.

Scofflaw

oncevotedff wrote: »

The judgement was delivered on June 30th and was reported in the Irish Times, at least. Basically the Court said Lisbon was fine but that the government must introduce a law that makes it mandatory to review every power that is devolved to the EU. Or something like that anyway.

That was the essential point, it seems to me - that Lisbon wasn't in conflict with German Basic Law, but that the current German legislation determining how the Ministers can act on the Council of Ministers is insufficient. Unfortunately, that latter point is something our own rather more binary system doesn't allow for - a further Supreme Court judgement might make it so, but Bunreacht is a little weak on how the executive is to be controlled.

The much-proclaimed "limits" that the German court is supposed to have set on the EU appear to me to be something of a fiction - as far as I can see, the German court is simply noting that those are the current limits of the EU:

Not only from the perspective of the Basic Law, the participation of Germany, however, is not the transfer of a model of a federal state to the European level but the extension of the federal model under constitutional law by a dimension of supranational cooperation. The Treaty of Lisbon has also decided against the concept of a European federal Constitution in which a European Parliament as the body of representation of a new federal people that would be constituted by this Constitution would be the focus. A will that aims at founding a state cannot be ascertained. Also measured against the standards of free and equal elections and the requirement of a viable majority rule, the European Union does not correspond to the federal level in a federal state. Consequently, the Treaty of Lisbon does not alter the fact that the Bundestag as the body of representation of the German people is the focal point of an interweaved democratic system.

This is being read, I think as normative - that the German court is saying "this is how it should be". That's incorrect - the German court is observing how it is.

cordially,
Scofflaw

FutureTaoiseach

The central question it raises is whether Irish constitutional law will be more subservient to EU law and the rulings of the ECJ than Germany. At present, the Irish Constitution states:

Article 29.4.10 wrote:

No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.

If we vote yes to Lisbon 2, this wording will be replaced as follows:

6° No provision of this Constitution invalidates laws enacted, acts
done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by theobligations of membership of the European Union referred to in
subsection 5° of this section or of the European Atomic Energy
Community, or prevents laws enacted, acts done or measures
adopted by—i the said European Union or the European Atomic Energy
Community, or institutions thereof,
ii the European Communities or European Union existing
immediately before the entry into force of the Treaty of
Lisbon, or institutions thereof, or
iii bodies competent under the treaties referred to in this
section,

Scofflaw wrote:

This is being read, I think as normative - that the German court is saying "this is how it should be". That's incorrect - the German court is observing how it is.

How it is in Germany you mean. Their constitutional-protections on national sovereignty being inpinged on by EU law are stronger than ours. This will be all the more so if we pass Lisbon II, as the new text of our Constitution will not only immunise "laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities" from being overridden by the Irish Constitution (as at present in Article 29.4.10), but also

laws enacted, acts done or measures adopted by—ithe European Atomic Energy
Community, or institutions thereof

and

iii bodies competent under the treaties referred to in this
section"

. That is new. Arguably, the Irish Constitution will not only be more subservient to the EU decisions than its German counterpart if Lisbon II is passed, but will actually be more so than under the present Article 29.4.10. This raises the questions of whether it is acceptable that Irish sovereignty enjoy greater protection than German sovereignty. For example, the German Constitutional Court held that the parliament must give consent to further expansions of EU competence. There is no such guarantee in the Irish Constitution, and I believe that unless this absence is rectified, many voters will have reservations about voting for Lisbon II. All in all then, a blow to the yes side. The German ruling requires that the consent of the Bundestag and Bundesrat be accomplished prior to any use of the "simplified revision process" of Article 48.7 to expand Qualified Majority Voting to new areas. We need such a provision here in Ireland. The people have concerns about the democratic-deficit and sch a provision would go a little way to addressing it.

German Constitution Court wrote:

o the extent that the general bridging procedure pursuant to Article 48.7(3)TEU Lisbon and the special bridging clause pursuant to Article 81.3(3) TFEU grant the national parliaments a right to make known their opposition, this is not a sufficient equivalent to the requirement of ratification. It is therefore necessary that the representative of the German Government in the European Council or in the Council may only approve the draft Resolution if empowered to do so by the German Bundestag and Bundesrat within a period yet to be determined …

Scofflaw

FutureTaoiseach wrote: »

The central question it raises is whether Irish constitutional law will be more subservient to EU law and the rulings of the ECJ than Germany. At present, the Irish Constitution states: How it is in Germany you mean. Their constitutional-protections on national sovereignty being inpinged on by EU law are stronger than ours.

Since, in the reference I'm making, they're commenting on how the EU is, it has no specific relevance to Germany.

They do have a different relationship with their politicians and how they control them in Europe, but their relationship with the EU is the same as ours - the EU treaties don't take precedence over their constitution or ours, but EU law takes precedence over their law and ours.

They don't have stronger constitutional protection as such - it's more a quesiton of how they go about reconciling any conflict. We reconcile any conflict between the treaties and Bunreacht by having referendums to insert our acceptance of the treaty in Bunreacht, which is a binary approach. The Germans, rather more sensibly, use their legal system, which allows them to say that the Treaty is acceptable but requires certain internal safeguards, which is what their judgement boils down to. A referendum sidesteps all that legal debate, unfortunately, which means that our internal safeguards are not under any pressure to keep up with the EU's evolution.

cordially,
Scofflaw