Caveats from Karlsruhe and Berlin: Whither Democracy after Lisbon?

Abstract

This Article analyzes the evolution of the reasoning about E.U. democracy that the German Federal Constitutional Court (BVerfG) has been shaping starting with the Solange I and II, Maastricht, and European Arrest Warrant cases and culminating with the Lisbon Treaty case. The BVerfG’s reasoning has often taken the form of caveats, whereby the BVerfG ‘warned’ the European Union of its assessments of the state of democracy in the Union. This Article argues that the BVerfG’s view of the primary source of the Union’s democratic legitimacy has gradually shifted away from the European towards the German Parliament. Never before has the BVerfG highlighted the role of national parliaments in buttressing E.U. democracy with such clarity. In what can be called ‘democracy solange’, the BVerfG ruled that as long as the European Union is an association of sovereign states, two consequences ensue; the democratic legitimacy provided by national parliaments and governments, and complemented by the European Parliament, is sufficient; and E.U. democracy cannot and need not be shaped in analogy to that of a state. As a corollary, the German system of parliamentary involvement in E.U. affairs has significantly been overhauled to enhance the legal position of the German Parliament vis-à-vis the Federal Government. The initial academic reactions to the BVerfG’s Lisbon judgment have failed to credit the BVerfG’s role in this important development.