As many readers already know, the German Federal Constitutional Court (FCC) handed down another important decision on Tuesday regarding national parliamentary oversight in the Eurozone crisis. The Court’s official press release is here, and the full decision is here (both in German). Der Spiegel’s English language website provides an overview of the basic elements of the Court’s ruling here, along with some excerpts from the German media commentary.
The ruling deals with the unconstitutionality of the special nine-member committee established last fall to serve as the Bundestag’s oversight mechanism for Germany’s participation in the European Financial Stability Facility (EFSF), the Eurozone’s temporary bailout fund. (The EFSF is supposed to be replaced by, or perhaps even merged into, the permanent European Stability Mechanism (ESM) later this year, depending on how things develop.) As discussed previously on this blog, the FCC last October issued a preliminary injunction against the operation of this committee pending final decision.
I will not dwell on the details of that final decision (although it might be useful to think about its broader implications for, say, Germany’s risk exposures under TARGET2 payments system – but that will need to await a future post). In essence, the Court found that, to satisfy the general demands of representative democracy on questions relating to the national budget (most importantly revenues, spending, borrowing, and loan guarantees), the Bundestag as a whole must provide the necessary approvals regarding Germany’s participation in the EFSF. However, in circumstances where EFSF activities require expedited and confidential review by the national parliament (e.g., with regard to purchases of government bonds on the secondary market), the Court found the use of the more limited body could be acceptable. Presumably these requirements will carry over to the new ESM, should it come into effect (we must wait and see about the ratification of the ESM Treaty). Nevertheless, this ruling is broadly in line with expectations discussed previously on this blog: The Court was struggling here, as in the past, to balance the functional demands of the Eurozone crisis with legal-cultural commitments to representative democracy in a historically recognizable, if evolving, sense.
This decision raises once again the increasingly crucial role of national parliaments in providing democratic legitimation for the integration process, particular as it spills over into core national-constitutional domains like spending and borrowing authority. For integration’s insiders, this changing role of national parliaments is evidence, perhaps, of the ‘Europeanisation of national politics’, to use a label offered up by European Council President Herman van Rompuy in a speech here in Berlin last month on the effects of the Eurozone crisis. Others might claim that increasing the national-parliamentary role is evidence of the ‘renationalisation of European politics’, an opposing label raised by Van Rompuy. In my view, both labels fail to capture the legal-historical process underway.
The ‘Europeanisation’ label arguably entails a questionable teleology, in which, as Van Rompuy put it more recently, ‘[m]aybe not formally speaking, but at least politically speaking, all national parliaments have become, in a way, European institutions’. There can be no doubt that European policy-making has impinged on national parliaments, although this process has been going on for decades. Rather, domestic parliaments remain fundamentally national in this crucial respect: They are historically ‘constituted’ embodiments of the democratic legitimacy of the national political community. For better or worse, they remain the only dependable source for such legitimation in the process of European integration, at least in a legislative sense (national executives and national high courts also play key roles here). Thus, consistent with the demands of representative government, national parliaments must necessarily retain an oversight role over delegated normative power even as it shifts beyond the boundaries of the state.
That said, I nevertheless believe it would also be wrong to regard the increasingly important role of national parliaments in the Eurozone crisis (or other dimensions of integration for that matter) as simply evidence of the ‘renationalisation of European politics’. Rather, the demand for national-parliamentary scrutiny is evidence of an ongoing process of ‘reconciliation’, as I argue extensively in Power and Legitimacy: Reconciling Europe and the Nation-State. This process is born of the essential reality of European governance, in which significant normative power has shifted to the supranational level in response to functional demands, but democratic and constitutional legitimacy has remained fundamentally wedded to the nation-state and its core institution, the nationally elected assembly, as the preeminent expression of the right of the national ‘demos’ to rule itself.
Modern governance, whether national or supranational, does not require that the national parliament retain all effective normative power (that would be impossible to achieve). Indeed, the very essence of modern governance is the delegation of normative power to functional institutions operating subnationally, nationally, supranationally, and even internationally, in order to address a whole range of functional regulatory demands. In this regard, the challenge of legitimizing the separation of power and legitimacy in the Eurozone crisis is merely a ‘new dimension to an old problem’, to use a phrase I advanced in an article more than a decade ago. This older problem—maintaining the connection between strongly-legitimated constitutional bodies and more weakly-legitimated functional bodies—has been central to modern administrative governance on the national level over the last half-century at least.
It is for that reason that I continue to argue that integration itself is best understood as primarily an ‘administrative’ phenomenon—in the sense of involving the diffusion and fragmentation of normative power away from the strongly legitimated constitutional bodies of the state, to instrumental regulatory bodies on the supranational level. It is in this sense that integration cannot be well understood as an autonomously ‘constitutional’ phenomenon in its own right, as some of integration’s most fervent advocates like to maintain. Rather, despite the EU’s extensive normative power, the process of integration lacks the autonomous capacity to legitimize itself in democratic and constitutional terms. For that, the integration process still very much needs the nation-state and national constitutional oversight, whether legislative, executive, or judicial. The most recent decision of the German Federal Constitutional Court regarding national-parliamentary oversight is simply a concrete expression of this continuing dependence.