EU ‘no more than community of states like UN’ ‒ German court’s damning ruling

Macron is 'untethered' without Angela Merkel says expert

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At the June 2004 European Council meeting, the governments of the 25 EU member states signed a constitutional treaty for the EU. France and the Netherlands held a referendum on the issue in 2005, but it was widely rejected and the “EU constitution” was never ratified. However, in 2009, the bloc agreed to the Lisbon Treaty with, according to analysis at the time by the London think tank Open Europe, 96 percent of the text the same as the Constitutional Treaty.

The treaty sparked a widespread debate in many European countries, including Germany – which is usually seen as Europe’s anchor.

Former German Conservative MP Peter Gauweiler and a number of left-wing deputies from Die Linke challenged the ratification of the Treaty before the Constitutional Court, saying that the proposed reforms of the EU would have undermined the independence of the German parliament and clashed with the German Constitution.

A report by EUObserver cites an example given by Mr Gauweiler in written evidence, which takes the hypothetical case of a German Environment Minister wanting to get a ban on a particular light bulb.

The report reads: “If the initiative fails at national level in Bundestag, then the Minister could present the idea in European Council, at EU leader level.

“Support by other member states at this level could mean that the European Commission is asked to present a lightbulb proposal, which eventually could get turned into EU law, despite Germany’s parliament having rejected the proposal.”

The challenge was politically important for Chancellor Angela Merkel, who was a strong supporter of the treaty.

On June 30, 2009, the German Constitutional Court delivered its verdict stating that Lisbon complied with German Basic Law.

However, the Court also produced an unyielding defence of national sovereignty, arguably putting an end to the EU’s march towards statehood.

The German judges bluntly declared that the EU is “an association of sovereign national states” that derives its democratic legitimacy from the member states and not from the European Parliament.

They also claimed that Germany’s Basic Law, or constitution, promotes peaceful co-operation within the EU and the United Nations, but this is not “tantamount to submission to alien powers”.

On the contrary: the Basic Law denies the German government the power “to abandon the right to self-determination of the German people”, which they exercise by voting for their own parliament, which in turn must not be denuded of powers because otherwise German democracy would become meaningless.

The German judges added that measures of European integration “must, in principle, be revocable”, and declare that they themselves have the right to safeguard “the inviolable core content” of the German constitution: a process that “can result in Community law or Union law being declared inapplicable in Germany”.

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In a 2009 Telegraph report, British journalist Andrew Gimson noted the judgment did not actually prevent the German government from endorsing Lisbon, but the Court merely insisted, as a condition of ratification, that certain measures had to be taken to strengthen the position of the German Parliament.

He wrote: “Jan Techau, a brilliant young analyst at the German Council on Foreign Relations, questions whether the Court will ever follow words with deeds: ‘The Court has always barked but it has never bitten’.

“Mr Techau points out that ‘Germany has traditionally been very integrationist’ and believes that ‘the German people are not generally eurosceptic’.

However, Mr Gimson emphasised the Court’s verdict still induced apoplexy in the surviving members of the West German political class that committed itself to European integration.

Prof Michael Stürmer, who from 1981 was an adviser to Helmut Kohl on European policy, told the publication: “[The judgement] is an absolutely irresponsible decision.

“There will be a new generation without a sense of history, without that great project of Europe – it’s bizarre and it’s sad.”

Moreover, according to Prof Stürmer, the judgement meant that for the next 10 or 20 years, no German government “can really move forward on Europe” and “there cannot be a successor treaty to Lisbon”.

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He reproached Mrs Merkel for having failed to begin at once “an open, principled conflict” with the Court.

Julian Arato, an associate Professor of Law at Brooklyn Law School in New York, also described the decision of the German Court as a “preemptive strike against European federalism”.

He wrote in 2010 for EJIL:Talk: “I want to suggest that [the Lisbon ruling] is really, at its core, about protecting state sovereignty in light of the expansion of competences at the Union level.

“In this regard, in 1993 the Court held only that under the Treaty of Maastricht, integration would not yet reach the point of a federal state.

“In 2009 the Court went further, holding that full integration into a supranational federal state (federalisation) would be in principle forbidden by the Constitution.”

Mr Arato added: “The German Court seems to suggest that ultimately the EU is at bottom no more than a community of states like the UN, with all the binding force of state responsibility under public international law – in other words, by this view the only real atomic constitutional community is the State, and in Europe as under public international law, the Member States remain ‘Masters of the Treaties.'”

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