The Lisbon Treaty is the outcome of a longstanding debate about the character and finality of European integration that started in earnest in the late 1990s and reached its anti-climax in the rejected Treaty establishing a Constitution for Europe. On 30 June 2009, the German Federal Constitutional Court gave a unanimous judgment (2 BvE 2/08) on the constitutionality of Germany's ratification of the Lisbon Treaty. This detailed and nuanced decision is bound to feature prominently alongside its earlier influential judgments in matters European (Internationale Handelsgesellschaft “Solange I”, [1974] 2 C.M.L.R. 540; Re Wünsche Handelsgesellschaft “Solange II”, [1987] 3 C.M.L.R. 225; Brunner v The European Union Treaty, “Maastricht”, [1994] 1 C.M.L.R. 57) and radiate far beyond German borders. The court addressed a range of issues relating to the meaning of democracy, separation of powers, federalism, subsidiarity and sovereignty in light of the evolution of the European experiment.
In dismissing a host of fundamental rights challenges against the Lisbon Treaty, the court held that the Act Approving the Treaty of Lisbon is compatible with the German Basic Law. Yet the court suspended ratification of the Lisbon Treaty pending modification of the German legislation. That legislation violated the right to vote, because the two German parliamentary chambers were accorded insufficient participatory rights in European law-making. The court deemed national democratic participation to be particularly important for future treaty amendments without ratification (Articles 48 (6) and (7) Treaty on European Union). To be constitutional, the Act needed to provide for a procedure so that the German representative in the European Council or the Council itself may only assent to such proposals with prior specific authorisation of Parliament.
As in the Maastricht decision, the Federal Constitutional Court emphasised that the EU remains a mere union of sovereign states. Despite additional transfers of competences, the Lisbon Treaty created no European State. Member States pooled their sovereignty in some areas for joint exercise at the European level. But these competences of the Union are conferred and limited. They derive from Member States and are in theory reversible.
The growing role of the European Parliament reduces, but does not bridge, the gap between the structural democracy deficit at EU level and the principle of democracy guaranteed by the German Basic Law. The Federal Constitutional Court underscored two further constitutional concerns in this regard. First, the weight of individual voters in European elections differs, leading to under-representation of the more populous countries. This unequal representation conflicts with the right to equal participation in elections guaranteed by the right to vote. That right is anchored in human dignity and protected by a clause of the German constitution, according to which certain fundamental constitutional principles are not subject to change even by constitutional amendment. Second, in the absence of a single European people and polity, there is at present neither a European Parliament nor a genuine opposition capable of serving as an effective check-and-balance on the “executive” EU institutions – the Commission, Council and European Council.
Public authority remains anchored in the democratic processes of the Member States and their peoples. The chief locus of accountability mechanisms in national democratic institutions requires effective safeguards against potential encroachment by further integration. The court was particularly concerned about the dynamic interpretation of the treaties and the new flexibility clause in Article 352 of the Treaty on the Functioning of the European Union. Notwithstanding, the court repeated its early mantra of a pro-European interpretation. The court recalled that the German Basic Law contains an unambiguous mandate for a peaceful and united Europe, which the political institutions are bound to implement. Such European integration is achieved by means of voluntary commitments by sovereign states that retain ultimate control over European integration.
In line with this reasoning, the court laid down abstract markers on transferring sovereign powers to the EU and provided guidance on how the principles of conferral, subsidiarity and proportionality may be used to interpret narrowly such transfers in core areas of national sovereignty. The agenda for European integration needs to be sufficiently precise. Further European integration needs to respect local (national) identity and decentralised power. Member States cannot be deprived of substantial leeway to regulate the direct circumstances of the lives of their citizens, especially when related to political participation. Areas that concern these direct circumstances which the court highlighted include the administration of justice, the monopoly on the use of force internally and externally, education, taxes and expenditures, religion and social policy.
The court also addressed constitutional concerns about the supremacy of EU law, which had become a lightning rod for criticism in the referenda on the Constitutional Treaty in France and the Netherlands. The German court remains firmly attached to supremacy, albeit not unconditionally. Kompetenz-Kompetenz, the authority to decide who is competent, remains vested in Member States. By recognising the “continuing sovereignty of the people … anchored in the Member States” and that “states remain masters of the Treaties” (at [334]), the court sees itself as the ultimate arbiter of conferred powers. Moreover, the Court affirmed its own authority to protect the constitutional core of the German Basic Law – a novel form of constitutional review – but emphasised yet again the principle of pro-European interpretation.
The court's insistence on greater participation by the legislature is a warning shot across the bow of the ECJ and the treaty-makers to respond to widespread concerns on the democracy deficit. The perception among many Europeans, if not the reality, that EU institutions and law-making procedures lack sufficient democratic accountability permeated the debate on the failed Constitutional Treaty and the constitutionality of the Lisbon Treaty. Even though orthodox features of democracy appear absent at the European level, it bears reminding that part of the EU's institutional set-up is an artefact of its unique character and purpose of a union among the peoples and States of Europe.
The UK Parliament approved the ratification of the Lisbon Treaty in the European Union (Amendment) Act 2008. The Amending Act provides that Ministers of the Crown require Parliamentary approval for a wide range of measures, including for decisions under Articles 48 (6) and (7) of the Treaty on European Union. The type of Parliamentary oversight foreseen by the Amending Act and required by the Federal Constitutional Court is remarkably similar. Unlike the applicants before the German Federal Constitutional Court, however, individuals before English courts would generally be unable to challenge the implementing Act based on violations of specific constitutional rights. In R. (Wheeler) v. Prime Minister [2008] EWHC 1409 (Admin), the High Court dismissed the argument that a ministerial statement could give rise to legitimate expectations about a referendum, and held that the UK could ratify the Lisbon Treaty without a referendum. In the UK, the Federal Constitutional Court's decision may be expected to have greater effects in the political realm, rather than in the courts.
To equate the German constitutional court's critical, yet nuanced evaluation of shortcomings of European integration to growing Euroscepticism would be misleading. The court, attached to the necessity of a well-functioning EU, continues the cooperative judicial dialogue with the ECJ. If heeded, its challenge to the status quo could mark a turning point in the attitudes of the various peoples of Europe towards their Europe. When carried out responsibly, such strategic interaction between courts helps balance the inherent centripetal and centrifugal forces in the EU's edifice.
