The German Constitutional Court versus the EU: self assertion in theory and submission in practice – Euro Aid and Financial Guarantees. Part 2.

Dr Gunnar Beck

Dr. Gunnar Beck outlines the history of the German Constitutional Court’s complicated relationship with the EU in a series of posts. Part 1 is below.

In its Lisbon Judgment of 30 June 2009 the FCC broadly affirmed its position as set out in the earlier Maastricht judgement. However, whereas in the Maastricht and Solange judgments on the formal constraints on the transfer of powers to the EU, in the Lisbon judgment it asserted its own jurisdiction of the final resort’ to review future EU treaty changes and transfers of powers to the EU on two distinct grounds: (i) ultra vires review, and (ii) identity review. Ultra vires review refers to position as characterised in the Maastricht decision: the transfer of powers to the EU and the latter’s exercise of its powers must be properly approved by the Bundestag (the German Parliament), respect fundamental rights, and be sufficiently legally certain. Identity review goes further. The institutions of the EU including the Court of Justice must respect the national identity of the Member States, the ‘non-transferable identity of (their) constitution(s)’ and the principles enshrined therein, and a minimum core of sovereignty vested in national political institutions.

The primacy of national constitutional law will remain in place for as long as the EU remains founded and is developed further on the basis of treaties and treaty amendments by sovereign states as the signatory members. It would and could change only if Member States abandoned their national constitutions and adopted a common European Constitution in their place. The FCC does not, however, state how such a supra-national constitutional revolution could or should be brought about.

Until, such time as the emergence of a political culture at a common European level, the FCC states, democratic legitimacy ultimately ‘remains connected to a considerable extent to patterns of identification which are related to the nation-state, language, history and culture’. By these patterns a demos” is constituted—a suitably Greek term (the German Volk perhaps carrying too much unwanted historical resonance) that may be defined as a people regarding itself ‘as one’ for the purposes of jointly governing the political affairs of its members. The existence of the patterns of identification is inevitably a matter of self-perception and degree, but their subjective absence in the minds of the governed means that there is no demos and thus no viable political culture. Their large-scale absence at the level of the EU, the FCC concludes, means there is (as yet) no ‘unified European people’. For this reason the European Parliament cannot claim the ‘democratic legitimisation’ enjoyed by national representative institutions. The European Parliament cannot be regarded as a fully democratic legislature because it does not represent the will of a single European people. National parliaments, by contrast, retain the primary legitimising function for as long as they represent identifiable and politically self-conscious peoples in the sense of a common political culture based on, among all things, shared language, culture, value and common collective historical experience.

For as long as there is not yet one recognisable European people which, in some form or other, may be recognised as having authorised a constitutional transfer of sovereignty to, and which alone could confer democratic legitimacy on, common European institutions of government, democracy is meaningful if and only if the essential decisions affecting key policy areas are taken by institutions that have a high degree of democratic legitimacy. Until such time as the emergence of a single European demos (and hence for the foreseeable future, the FCC opines) Member States as the entities with the highest degree of democratic legitimacy must therefore retain sovereignty over the central areas of ‘democratic formative action’. The FCC identifies five areas of competence where a further transfer of national power could seriously erode state sovereignty:

1)      the military and police monopoly on the use of force domestically and abroad

2)      criminal law,

3)      fundamental fiscal decisions,

4)      the guarantee of a just social order and

5)      decisions that are of particular importance to the preservation of national culture, in particular family law, the school and education system and the status of religious communities.

The FCC describes these areas as essential to sovereignty in which the democratically accountable and legitimated national political institutions must retain sufficient political scope for effective action or autonomy (Handlungsspielraum). Such political autonomy in turn presupposes a sixth area where national sovereignty must not be eroded by the actions of the European Union: budgetary autonomy. Until such time as the EU has evolved into a sovereign constitutional entity, Union membership must not place such financial obligations on Member States so as to deprive them of the budgetary autonomy for the effective political regulation of the economic, cultural and social framework of the ‘living conditions’ of the individual nations that make up the European Union.

In terms of the immediate factual issue of the case before it, the FCC decided, subject to minor qualifications and insistence on partial amendment of the German  ratification act, the Lisbon Treaty was compatible with the German Constitution. Once more the FCC asserted its own jurisdiction and the primacy of the German Basic Law in principle, whilst it submitted in practice.

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