German Law Journal, Vol. 10, No. 8, 2009
14 Pages Posted: 2 Nov 2009 Last revised: 24 Feb 2015
Date Written: November 2, 2009
In announcing the decision of the Bundesverfassungsgericht (“Federal Constitutional Court” or “FCC”) on the constitutionality of the Lisbon Treaty, the Presiding Justice of the Second Senate summed up the judgment by proclaiming: “The German Basic Law says “yes” to the Treaty of Lisbon.” The decision initially received praise from commentators for having struck down only the existing version of an accompanying federal law while preserving Germany’s ratification of the Treaty more broadly. The decision has thus been likened to the FCC’s 1992 decision upholding the German ratification of the Maastricht Treaty.
This short comment explains what is old and what is new about the FCC’s current decision about Europe. The comment exposes the FCC’s highly deceptive invocation of having taken a “Europe-friendly” stance in interpreting the German Basic Law. The discussion exposes the myriad contradictions within the opinion and the decision’s strange consequences both in terms of the concrete workings of the European Union and in terms of its grand theory of democracy. The comment highlights the FCC’s mistaken understanding of the European Parliament, the profound failure of the Court’s reflexive idea of state sovereignty, and the way in which the opinion condemns Europe to a perpetual state of deficiency. In all this, the Federal Constitutional Court installs itself as the sole arbiter of Germany’s constitutional destiny - even above the people themselves.
A subversive opinion with more twists and turns than even the FCC itself comprehends, the decision ultimately stands as a crude speech act asserting little more than the power of the Court itself.
Keywords: Lisbon Treaty, European Union, Germany, German Federal Constitutional Court, constitutionalism
JEL Classification: K33
Suggested Citation: Suggested Citation
Halberstam, Daniel and Möllers, Christoph, The German Constitutional Court Says 'Ja Zu Deutschland!' (November 2, 2009). German Law Journal, Vol. 10, No. 8, 2009; U of Michigan Public Law Working Paper No. 170. Available at SSRN: https://ssrn.com/abstract=1498527