A Preemptive Strike against European Federalism: The Decision of the Bundesverfassungsgericht Concerning the Treaty of Lisbon
Freshfields Bruckhaus Deringer
EJILTalk!, October 9, 2010
On first reading the 2009 Lisbon case of the German Constitutional Court appears to hew quite closely to the Court’s reasoning in 1993, reviewing Germany’s accession to the Maastricht Treaty. Both cases declare that European integration must respect the inviolable and unamendable core of the German Constitution. (Specifically, in these cases, Article 20, entrenching democracy and the rule of law). In both cases the Court declares that under the Treaties it retains final say over whether European Law is compatible with the Grundgesetz and is thus applicable in Germany (judicial Kompetenz-Kompetenz). Finally Lisbon, like Maastricht, finds that the Treaty ultimately passes constitutional muster. Thus, at first blush, the Court of Lisbon seems to basically restate its 1993 reasoning. I want to argue, however, that the Court has substantially sharpened its challenge since Maastricht, elevating much of the Court’s earlier state-centric interpretation of the status of integration under the Treaties to a statement of German constitutional principle.
This paper focuses on three ways in which Lisbon represents an advance on Maastricht. The Court announces: 1) that the Grundgesetz entrenches an absolute and unamendable limit on integration, that State sovereignty as such is inalienable, and thus forbids the delegation of excessive competences, especially Kompetenz-Kompetenz; 2) the Grundgesetz requires the German Constitutional Court to retain final review over the actions of German and European public authorities for possible alienation of, or encroachment on, German State sovereignty (judicial Kompetenz-Kompetenz); and 3) the Court goes about rigorously reviewing the Lisbon Treaty for infringements of German sovereignty in a far more searching manner than it had done in the past. Leaving little to implication, the Court spells out the consequences of its decision: in the exceptional case where European institutions overstep their enumerated powers, even with the interpretive blessing of the ECJ, the German Court will exercise review and may instruct German authorities not to apply the European law, even if it means engaging Germany’s international state responsibility.
Number of Pages in PDF File: 14Accepted Paper Series
Date posted: October 23, 2010
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