Karlsruhe interpretations

The constitution says “yes to Lisbon.” This abridgment of a long verdict that comes from the mouth of the highest court is remarkable because the constitution does not talk by itself: The judgment of the Federal Constitutional Court on the Lisbon Treaty is its current interpretation, sixty years after passing the constitution.

The preamble from 1949 states that the German people want to “serve world peace as an equal partner in a united Europe.” Former article 24 added that “the Federation may, by legislation, transfer sovereign powers to international institutions.” That was more a political vision than a legal program. At that time there was, especially in Germany, the desire for a united Europe becoming a “state-like” construct. In 1969 Walter Hallstein, first president of the European Commission and Adenauer’s State Secretary, published a book entitled “The Incomplete Federal Union” (“Der unvollendete Bundesstaat”).

The political development in the early 1950s gave reason to believe in this concept. In 1952 a treaty on the “creation of the European Defence Community” was signed; in 1953 the governments commissioned an assembly to shape the “final organisation” of a European “community”. It was the first draft constitution. At that time, today’s interpreters of the constitution would not only have said “yes to the Lisbon Treaty” – also, they would not have erected any “stop signs”, as now done by the Federal Constitutional Court.

Since then the European integration has proceeded in a way that nobody could have believed possible in the 1950s. The European Coal and Steel Community of 1951 and the six-country EEC of 1957 have enlarged to a union with 27 members; the co-operation has been extended and deepened – despite many setbacks. The outcome is a complex construct, incomprehensible in terms of classic political science. However, one thing is apparent: The political integration hasn’t kept up with the economic one – there is a common currency but no European government. The Lisbon verdict – that primarily continues the Constitutional Court’s decision on the Maastricht Treaty of 1989 – can be perceived as a result of this development in European policy.

Its judicial central point means the following: The current “union of states” called the EU exceeds the cooperation levels of a community of states. The Federal Constitutional Court has no objections. However, by expanding its responsibilities, this state union does not have sufficient democratic legitimacy to further narrow the scope of the member states. To put it politically: The unsuccessful efforts for a European constitution – from the early 1950s to the “Treaty on a Constitution for Europe”, whose shrunken “offspring” finally became the “Lisbon Treaty” – show that the governments and especially the peoples of Europe aren’t prepared to subsume their national states into a consolidating structure.

The conclusions of the Constitutional Court are consistent with the reality and the future prospects of today’s EU. Therefore, the ambitions and claims of the European Parliament, for instance, suffer setbacks. In fact, its importance and prestige have remained small from the national voting public’s point of view – despite its increasing relevance in the interplay of European institutions. Decreasing voter participation rates show this legitimacy deficit.

However, besides the European Parliament, the Bundestag, too, got its just deserts: It fell short of its integration responsibility because it hasn’t fulfilled the possibility to have a say either. The representatives possibly would have been spared this lesson if they had done a better job in the proceedings on the European arrest warrant. The praise the concerned persons received is by all means hypocritical.

Nevertheless, it is doubtful that the Court’s wake-up call will make the parliamentary procedures undergo a radical change. The material to be dealt with is highly complex; negotiations that need to result in an agreement between the 27 states could be blocked if the Federal Government was sent to Brussels with an imperative mandate.

Most exciting will be the fact that the Constitutional Court’s judges have initiated the creation of a national constitutional investigation procedure after being unsuccessful with the idea of erecting a European Competence Court. An open conflict would arise if the Federal Constitutional Court – as final instance – dismissed a judgment of the European Court of Justice despite the constitution’s cordiality with European law.

Published in the Frankfurter Allgemeine Zeitung (FAZ) newspaper on 11 July, 2009. To read the original, in German, click here.