Self-assertion in theory, submission in practice? – A Reply to Dr. Gunnar Beck

Prof. Peter Lindseth

The news out of Germany is that the Federal Constitutional Court (FCC) has issued a preliminary injunction against the new, nine-member Bundestag panel established to provide expedited decisions on any future Eurozone bailouts.  (In the most recent vote in the German parliament, Chancellor Merkel avoided using this panel by submitting her negotiating mandate to the full Bundestag, capitulating to demands from members of her own party for greater democratic legitimation.) Given that the FCC has apparently been thrust once again into the center of the institutional and political debate in Germany over integration, it might be an opportune time to reflect on the recent series of posts of Dr. Gunnar Beck (here, here, and here) on the same subject.  Dr. Beck makes a number of fair points but, in the end, I believe his conclusion—that these cases represent ‘self-assertion in theory, but submission in practice’—does not do justice to the actual holding of the cases nor to their underlying legal-historical foundations. Hence this reply.

One cannot adequately appreciate the German constitutional jurisprudence with regard to integration, I believe, without reference to the constitutional and legal struggles surrounding the emergence of modern administrative governance over the course of the twentieth century, not just in Germany but throughout the North Atlantic world. Central to these struggles was the effort to define the role of the democratic legislature—that quintessentially nineteenth-century institution—in the face of political pressures to delegate regulatory power to executive and technocratic bodies, first nationally, then supranationally. These political pressures flowed from the functional demands for new types of regulation to which modern society gave rise, not least the dynamic regulation of social risks deriving from the movement of goods, persons, and capital both within and beyond states.  The process of European integration, which was undoubtedly bound up with ideals of peace and human rights in the postwar decades, also crucially depended on the mechanisms of executive and technocratic (i.e., ‘administrative’) governance to regulate a similar range of risks.  In this sense, integration should be understood as a supranational extension of the modern administrative state.  And as such, it has been understandably subjected (by the FCC most importantly) to a form of analysis drawn from the domestic constitutional analysis of administrative governance, suitably adjusted to the demands of integration.

Despite its seeming ‘self-assertion in theory, but submission in practice’, the German jurisprudence on integration is more fairly understood in terms of the effort to reconcile the functional and political pressures for delegation of regulatory power, on the one hand, with continuing cultural commitments to democratic government embodied in the nationally elected assembly, on the other. This has been the essence of the constitutional challenge posed by administrative governance on that national level as well; European integration is thus, from the perspective of modern administrative governance, merely ‘new dimension to an old problem’, albeit with significant new features flowing from the demands of cooperation and coordination among multiple member states.

Hence the FCC’s reliance, in the Maastricht decision, on formulas for evaluating the constitutionality of legislative delegations on the national level, most importantly relating to the ‘foreseeability’ or ‘predictability’ of the norms likely to be produced at the supranational level. Similarly, in the Lisbon decision, we see traces of the idea of a constitutional reserve of legislative authority—‘content-related limits’ (para.247)—akin to the domestic Vorbehalt des Gesetzes, or ‘statutory reserve’ which the national legislature cannot delegate. This in turn derives from the idea that certain essential functions necessarily belong to the democratic legislature (see, e.g., para.351), akin to the domestic Wesentlichkeitstheorie, or ‘theory of essentialness’ on the national level. From these principles, the Lisbon decision then imposed a whole range of additional requirements as to Bundestag involvement in the integration process. Most importantly, these related to the implementation of the “simplified revision procedure” of Article 48(6) TEU, as well as the so-called passerelle clauses of Article 48(7) TEU, along with several other more specific provisions.  The FCC concluded that the Government could not undertake any transfer of powers under these provisions without getting authorization through a specific “law” (Gesetz) as demanded by Article 23(1) of the Basic Law; the general ratification of the treaty itself would not suffice for democratic legitimation in this regard, precisely because of the lack of foreseeability or predictability in how these provisions of the Treaty of Lisbon might be used in the future (see, e.g., Lisbon decision, paras.311, 318-320, and 414-415).

In the same spirit was the FCC’s most recent decision regarding the Greek bailout.  As Dr. Beck summarized:

“The FCC approved the legislation authorising German participation in the Euro stabilisation mechanism subject to only one small proviso that before giving any future guarantees within the meaning the Euro Stabilisation Mechanism Act the Federal Government would be obliged to obtain prior approval by the Budget Committee.

It is difficult to view the FCC’s proviso as little more than a fig-leaf.

This evaluation of the Court’s proviso as a ‘fig-leaf’, I believe, may well prove to be premature, if the FCC’s recent issuance of a preliminary injunction against the newly adopted Bunsdestag procedures is any guide.  Moreover, Dr. Beck’s scepticism regarding the ability of Bundestag or any of its committees ‘to exercise effective accountability or political power over the government’ is belied by considerable social science literature on the growth of national-parliamentary oversight of national executives in relation to European policy over the last two decades (this literature is reviewed and summarized in chapter 5 of my recent book, Power and Legitimacy: Reconciling Europe and the Nation-State).  Finally, Dr. Beck’s analysis does not really address the substantive restrictions that the FCC placed on future bailout efforts, the effects of which were arguably felt in the most recent European summit.  This forced negotiators onto the terrain of complex and perhaps unsustainable financing structures to get around the Court’s substantive restrictions.

Thus, it is my sense that the rubric ‘self-assertion in theory, submission in practice’ probably does not adequately capture the legal import of the FCC’s jurisprudence.  The ‘submission in practice’ is none other than the strong deference that judges in the administrative state often give to the political judgments of elected officials and more expert decision makers in the face of severe functional demands.  The ‘self-assertion in theory’ is in fact not theoretical at all.  It is an honest effort to define the outer-bounds of integration consistent with the demands of maintaining some semblance of constitutional democracy on the national level, while also allowing the integration process to go forward.  This is a tough balance to strike, but an essential one for integration’s long-term health and stability in the future.

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