Lisbon to Karlsruhe: EU Constitution Must Take the German Court Hurdle


When France ratified the EU’s Lisbon treaty, President Sarkozy went on television the following evening (10 February) to tell the French people that his refusal to submit the treaty to a referendum had been part of a “deal” with the other EU states.
“In order to convince all our partners to accept this new simplified treaty which we were proposing and which was no longer a constitution,” Sarkozy said, continuing with his pretence that the Lisbon treaty is more simple than the constitution, which it is not, “we had to promise to ratify it in parliament if we reached an agreement. If the condition had not been fulfilled, no agreement would have been possible.” [The allocution of the president of the Republic was posted on the Elysée Palace web site, 10 February 2008.]
In other words, the heads of state and government of the EU colluded with one another to ensure that no referendum was held in France on the new constitution. It is difficult to imagine a more flagrant demonstration of the deliberately anti-democratic political culture and practice of the EU.
In the eyes of the other EU states, France counted as an unreliable partner after the rejection of the EU constitution in 2005, and after it broke ranks (with Germany) against the Iraq war in 2003, a war supported by the majority of EU states and by all the then candidate countries (now members) in Eastern Europe. The other EU states regarded Jacques Chirac’s decision to submit the constitution to a referendum as irresponsible. Nicolas Sarkozy said in his television address that France had managed to restore some its credit with its European partners by concocting the Lisbon treaty in such a way that it could be ratified without recourse to a new popular vote.
However, it is not, in fact, France which has been the most unreliable country where the ratification of new treaties is concerned. Surprisingly, that honour goes to Germany. Germany was the last country to ratify the Maastricht treaty in 1993 and it never ratified the European constitution either. In both cases, the reason was the same: the German Constitutional Court in Karlsruhe. When permitting the ratification of Maastricht, the Court imposed severe restrictions on the terms of that ratification, while for the Constitution it suspended it altogether. It is possible (though unlikely) that the same thing may happen again where Lisbon is concerned.
In 1993, the Eurosceptic Manfred Brunner, a former official of the European Commission and leading light in the FDP Liberal party, took the Maastricht treaty to Karlsruhe saying that the abolition of the deutsche mark was unconstitutional. The court agreed to permit the ratification of the treaty only on the basis that currency stability would be as well protected by the European Central Bank as it had been by the Bundesbank. It also ruled that the role of the European Court of Justice in protecting human rights in Germany could be exercised only as long as it did not conflict with its own rulings on human rights. Theoretically, therefore, Germany could even now revoke its membership of the euro on the grounds that the terms of the ratification had not been respected (if there was substantial euro inflation, for instance).
In the case of the defunct constitution, the German president, Horst Köhler, promised in 2005 not to sign the instrument of ratification until Karlsruhe ruled on an appeal against the constitution which had been lodged with it by a Bavarian member of the Bundestag, Peter Gauweiler (an old friend of Brunner’s, who by then had left politics) who had claimed that it transferred too much power to Brussels and Luxemburg. Following the rejection of the constitution by France and the Netherlands, Karlsruhe kicked the matter into touch by saying that in view of the ongoing political discussion about what to do next, it did not see any reason to rule on the appeal. Eventually, as we know, the constitution was dropped anyway.
Might any dormant reservations about Lisbon and the constitution resurface when the new treaty is ratified? There will definitely be new appeals against it by the Nuremberg jurist, Karl-Albrecht Schachtschneider, one of Germany’s foremost Eurosceptics and the mastermind behind the previous appeals. There are indeed some grounds for saying that the ratification of Lisbon might prove problematic in Germany in 2008. There is dissatisfaction among the governments of Germany’s Länder that their rights will be bulldozed by the new treaty, and this has already led to a postponement of the ratification of the treaty by Germany’s upper chamber, the Bundesrat, composed of the Länder governments. [Report, Frankfurter Allgemeine Zeitung, 22 February 2008.]
Germany’s attachment to its internal federalism means that the centralisation of power in Brussels is a touchy subject. But even national politicians are worried about it too. According to one German newspaper [Handelsblatt, 25 February 2008], the German government is preparing to change the constitution in order to facilitate the ratification of the Lisbon treaty (usually referred to as “Reform Treaty” in Germany): the treaty provides for national parliaments to appeal against decisions by the European Council, but the proposed provision for one third of members of the German Bundestag to make such an appeal is nowhere to be found in the existing German Basic Law. In other words, the government wants to highlight its claim that the Lisbon treaty increases the participation of national parliaments in EU decision-making by making this change (although in reality the treaty restricts the right of appeal to cases where the EU acts according to a “special legislative procedure”, while greatly centralising power in Brussels in all other cases).
However, no less a person than the head of the Constitutional Court himself, has expressed his concern at the new treaty. Judge Hans-Jürgen Papier welcomed the Lisbon treaty when it was ratified, but also said that the text was so unclear that it was in danger of not being accepted by people. [Tagesspiegel, 14 December 2007] He also said specifically that the treaty had failed clearly to delineate the powers of Brussels, still less restrict them as would have been desirable. “Substantial legislative must remain with the Bundestag and the Bundesrat.” He has called for the financial autonomy of the Länder to be strengthened in order to protect their rights.
Would Papier and his fellow judges ever reject the Lisbon treaty on this basis? I very much doubt it. His predecessor, Paul Kirchhof, who was president of the Court at the time when Maastricht was ratified, wrote eloquently on the necessity to retain sovereign states as the indispensable protectors of human rights and democracy. The treaty was ratified all the same, because the Court said it could not stand in the way of the clearly expressed will of the two chambers of the German parliament. But each of these concessions made to the principles of national rights will leave its mark. Maastricht passed the Court’s scrutiny only by a whisker; Lisbon will create new dissatisfactions. However, we are a very long way from reaching the point where either the political class in Germany or the judges on its constitutional court will actually turn against the European project itself over which, for the most part, Germany continues to exercise a decisive influence. I therefore do not believe that discontent among the Länder government will be sufficient to override party political discipline in favour of the new treaty and, under those circumstances, the treaty will go through the Courts as easily as it will go through the Parliament.