Hostname: page-component-848d4c4894-x24gv Total loading time: 0 Render date: 2024-06-12T14:12:20.252Z Has data issue: false hasContentIssue false

German Participation in EU Decision-Making after the Lisbon Case: A Comparative View on Domestic Parliamentary Clearance Procedures

Published online by Cambridge University Press:  06 March 2019

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

When the German Federal Constitutional Court pronounced itself on the constitutionality of the Treaty of Lisbon, its general reasoning on the character of the European Union sounded familiar. In its judgment, the Court recalls that the German Basic Law is a Europe-friendly constitution: its Preamble and its Article 23, regarding European integration, allow, and in fact prescribe, Germany's participation in the establishment of a united Europe. However, the Court also stresses the paramount position of the member states, their peoples, and their national parliaments in the institutional architecture of the EU. Already in its Maastricht Case, the Court had put an emphasis on institutional guarantees regarding the conditions under which sovereign competences may be conferred upon the EU from its constituent member states. The Lisbon Case builds upon the Maastricht doctrine, but now adds concrete instructions to the German legislature: whenever the EU institutions wish to apply certain strategic decisions under the Treaty of Lisbon, the German government may agree to them only after the two national legislative chambers, the German Federal Parliament (Bundestag) and the German Federal Council of States (Bundesrat), have given their prior approval. The national statute that regulates this must (and will) be changed accordingly before Germany may ratify the Treaty of Lisbon. The strategic decisions in question mainly concern what the Court considers to be, or at least potentially to be, de facto treaty amendment procedures by which EU institutions may dynamically expand their competences or change decision-making rules without having to resort to the regular ratification procedure for new treaties. The most prominent example is the so-called passerelle (or simplified treaty revision procedure), allowing the European Council unanimously, and with the European Parliament's assent, to introduce qualified majority voting and co-decision in areas where this does not yet apply. National parliaments are informed six months in advance and each of them may cast a binding veto, but ordinary positive ratification in all member states is not required. Also for the application of the flexibility clause, allowing for EU action to attain EU goals in the absence of a specific legal basis, the German Constitutional Court requires prior bicameral approval by the national legislature. The Court rejects the idea of future treaty amendment by tacit consent, because that would undermine the prerogatives of the national legislature and, essentially, German sovereign statehood. At the risk of sounding corny, we may therefore dub the Lisbon Case “Solange III,” after the two previous Solange Cases, and summarize it as follows: As long as (or, solange, in German) the European Union is not a federal state but comprises constituent member states, the people, through the national legislature, must consciously legitimize European integration step by step. The partially enhanced flexibility of future treaty reforms envisaged under the Treaty of Lisbon is, as far as Germany is concerned, undone. But what about the other member states? Where does the Lisbon case put Germany on the European map of parliamentary democracy? How do the ratification procedures on which the German Court insists compare with the procedures of national parliamentary oversight as they exist in the rest of the Union? The present article shall put the envisaged German procedures in a comparative perspective. But first it shall reflect on some of the main features of the judgment itself.

Type
Special Section: The Federal Constitutional Court's Lisbon Case
Copyright
Copyright © 2009 by German Law Journal GbR 

References

1 Lisbon Case, BVerfG, 2 BvE 2/08, from 30 June 2009, available at http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208.html.Google Scholar

2 Maastricht Case, BVerfGE 89, 155.Google Scholar

3 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, art. 48(7) 2007 O.J. (C 306) 1 [hereinafter Lisbon Treaty].Google Scholar

4 Consolidated Version of the Treaty on the Functioning of the European Union, May 9, 2008, art. 81, 2008 O.J. (C 115) 47, 78 [hereinafter TFEU].Google Scholar

5 Lisbon Treaty art. 31(3). See TFEU art. 153, 192, 312, 333, 308.Google Scholar

6 See TFEU art. 352.Google Scholar

7 See TFEU art. 48, 82, 83.Google Scholar

8 Lisbon Treaty art. 83(3).Google Scholar

9 See TFEU art. 86.Google Scholar

10 Lisbon Treaty art. 16(2).Google Scholar

11 First recital in the Preamble to the protocol on the role of national parliaments in the EU (originally inserted in the Treaty of Amsterdam and largely reproduced under the Treaty of Lisbon). Protocol on the Role of National Parliaments in the European Union (Treaty of Amsterdam), First Recital, 16 Dec. 2004, 2004 O.J. (C 310) 204.Google Scholar

12 Nález Ústavního soudo ćj. 19 / 2008 / Sbírka nálezu a usnesení Ústavního soudu. Pl. US 19/08, Nov. 26, 2008, available at http://angl.concourt.cz/angl_verze/doc/pl-19-08.php.Google Scholar

13 Opinion of 15 February 2008, published in Kamerstukken II 2007/08, 31 384 (R 1850), no. 4.Google Scholar

15 See e.g., Bruno de Witte, The National Constitutional Dimension of European Treaty Revision - Evolution and Recent Debates (2004); Götz, Volkmar, Kompetenzverteilung und Kompetenzkontrolle in der Europäischen Union, in Der Verfassungsentwurf des Europäischen Konvents (Jürgen Schwarze ed., 2004).Google Scholar

16 Dehaene, Jean Luc, Foreword to European Constitutionalism Beyond Lisbon (Jan Wouters, Luc Verhey & Philipp Kiiver eds., 2009).Google Scholar

17 Most recently, the Czech Constitutional Court referred to German case-law in its judgment on the constitutionality of the Treaty of Lisbon. Czech Constitutional Court, Pl. US 19/08, Nov. 26, 2008, available at http://angl.concourt.cz/angl_verze/doc/pl-19-08.php.Google Scholar

18 Kiiver, Philipp, The National Parliaments in the European Union - A Critical View on EU Constitution-Building 43 (2006); the relevant comparative chapter is available at ssrn.com/abstract=1426078.Google Scholar

19 See Raunio, Tapio, Holding Governments Accountable in European Affairs: Explaining Cross-National Variation, 11 J. Legis. Stud. 319 (2005).Google Scholar

20 See also Auel, Katrin, Democratic Accountability and National Parliaments: Redefining the Impact of Parliamentary Scrutiny in EU Affairs, 13 Eur. L.J. 487 (2007).Google Scholar

21 See also Holzhacker, Ronald, The Power of Opposition Parliamentary Party Groups in European Scrutiny, in The Europeanisation of Parliamentary Democracy 126 (Katrin Auel and Arthur Benz eds., 2006).Google Scholar

22 See Raunio, , supra note 19, with references.Google Scholar

23 TFEU art. 81.Google Scholar