The Ruling of the German Constitutional Court on the Treaty of Lisbon

2009 ◽  
Vol 10 (8) ◽  
pp. 1259-1262 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
European Integration ◽  
Daily Basis ◽  
Constitutional Court ◽  
Great Length ◽  
Integration Process ◽  
Treaty Of Lisbon ◽  
Basic Law ◽  
German Constitutional Court ◽  
Political Spectrum ◽  
German People

Generations of politicians and lawyers will have to read and re-read the recent ruling of the German Constitutional Court of 30 June 2009 regarding the Treaty of Lisbon (“Lisbon Case”) on almost a daily basis for many years to come. The Court, master of its own proceedings and not feeling bound by any doctrine of judicial self-restraint, has expounded in this decision at great length about its own philosophy of the European integration process. Based on its self-established theory, in which every German citizen is holder of a democratic right to a legislature that is endowed with substantial powers to determine the destiny of the German people, the Court examined the Treaty in each and every detail. The claimants, alleging through a constitutional complaint that this democratic right had been breached, could not point to any specific injury that they had suffered. In real terms, their constitutional complaints amounted to an ‘abstract' review of the Treaty, a remedy which the Basic Law reserves for the federal government, any government of a Land, or for a third of the members of the Bundestag. But the Court saw the constitutional complaints, which had been filed by the extreme right and the extreme left of the political spectrum, as a welcome opportunity to define the constitutional limits of the European integration process. Far from reflecting the views of the framers, the ruling reads like a political manifesto from the judges.

Verfassungsgebende Gewalt: Notwendiger Geltungsgrund der Verfassung oder irreführendes Dogma?

2020 ◽  
Vol 103 (3) ◽  
pp. 289-314
Author(s):  
Shu-Perng Hwang
Keyword(s):  
European Integration ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Constituent Power ◽  
Legal Fiction ◽  
Basic Law ◽  
The People ◽  
The Will ◽  
German People ◽  
The Relationship

Although it is generally accepted that the validity of a democratic Constitution is based on the so-called constituent power of the people, the nature of this power in relation to the Constitution itself remains controversial. While some scholars repeatedly assert that the constituent power is unconstrained and therefore can be exercised arbitrarily, others contend that, in view of its irresolvable connection with the Constitution, the constituent power is by no means unlimited. Moreover, the debate on the relationship between the constituent power and the Constitution has attracted special attention in view of the trend of European integration. It is thus no surprise that, in its famous Lisbon decision, the German Constitutional Court also dealt with the question as to whether the constituent power of the German People is entitled to abandon the sovereign statehood of the Federal Republic of Germany through replacing the German Basic Law with a new Constitution. Nevertheless, whether the Court deemed the constituent power to be completely unconstrained is far from clear. On this account, this article offers a critical analysis of the reasoning of the Lisbon decision with regard to the nature and limits of the constituent power in light of the European integration. In particular, it argues that the Court’s opinion was based on the presupposition that the constituent power serves as an unchallengeable dogma. Such a presupposition is problematic precisely because it simply identifies the constituent power with the demonstration of the will of the people and thereby insists that both the justification and the interpretation of the Constitution are subject to the alleged will of the people, which though can never be verified as true. Ultimately, this article suggests that the widespread will-oriented understanding of the constituent power is to be replaced by the recognition that the validity of the Constitution is based on the legal fiction of a basic norm.

‘An Association of Sovereign States’

2009 ◽  
Vol 5 (3) ◽  
pp. 391-406 ◽  
Author(s):  
Roland Bieber
Keyword(s):  
European Integration ◽  
Critical Assessment ◽  
Lisbon Treaty ◽  
Court Decision ◽  
Constitutional Court ◽  
German Constitution ◽  
German Constitutional Court ◽  
Conceptual Foundations ◽  
Fundamental Requirement ◽  
The Eu

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Continuing sovereignty of member states under the EU Treaty – Extended constitutional limits to European integration (‘eternity clause’) under German Constitution, but these are not violated by Lisbon Treaty – Composition of European Parliament does not satisfy fundamental requirement of democracy but does not violate German Constitution since EU is not a state – Critical assessment of conceptual foundations of decision

The Basic Law at 60 – From 1949 to 2009: The Basic Law and Supranational Integration

2010 ◽  
Vol 11 (1) ◽  
pp. 99-114 ◽  
Author(s):  
Juliane Kokott
Keyword(s):  
European Integration ◽  
Federal State ◽  
Constitutional Court ◽  
Founding Fathers ◽  
The Core ◽  
Basic Law ◽  
The World ◽  
Federal Constitutional ◽  
Supranational Integration ◽  
The Guardian

Sixty years after the entry into force of the Basic Law the world is much more interdependent. The concepts of statehood and sovereignty have changed. The following contribution examines how the Basic Law, as amended and interpreted by the Federal Constitutional Court, deals with this development. As a foundational matter, the Basic Law contains a commitment towards integration, although sixty years ago integration largely was seen as a promise. Now, 60 years later, the Federal Constitutional Court is developing limits to integration and recently ruled out Germany's participation in a European Federal State and sees itself as the guardian of German sovereignty. A change of paradigms seems to have taken place. For the founding fathers and mothers, a united—possibly even federal—Europe was considered to be the solution to protect against war and relapse towards an undemocratic, terroristic regime. But now the Federal Constitutional Court feels compelled to protect democracy and the core values of the Basic Law against “too much” European integration.

David Currie and German Constitutional Law

2008 ◽  
Vol 9 (12) ◽  
pp. 2081-2094
Author(s):  
Peter E. Quint
Keyword(s):  
Federal Republic ◽  
Constitutional Law ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Major Work ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
German Constitutional Law ◽  
Constitutional Jurisprudence

Without much doubt, the two great pillars of American scholarship on the German Basic Law and the jurisprudence of the Federal Constitutional Court are (in the order of first appearance) Donald Kommers's monumental casebook, The Constitutional Jurisprudence of the Federal Republic of Germany and David Currie's magisterial treatise, The Constitution of the Federal Republic of Germany. Professor Kommers's comprehensive work was a milestone in a long career that has been very substantially devoted to the study of German constitutional law. In the late 1960s, Kommers spent a research year at the German Constitutional Court and, drawing in part on personal interviews with the justices, he published the first major work in English on that court. Since then, Kommers has produced a steady stream of significant works on German constitutional law.

The Effects of the Judgments of the European Court of Human Rights According to the German Constitutional Court

2010 ◽  
Vol 11 (5) ◽  
pp. 513-526 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
The Rule Of Law ◽  
Basic Law ◽  
European Court ◽  
German Constitutional Court ◽  
The Individual ◽  
Willingness To Cooperate

The Federal Republic of Germany counts among the earliest States parties to the European Convention on Human Rights (ECHR). It ratified the ECHR on 5 December 1952, three years ahead of Italy, and hence found itself among the original members of the treaty system when the ECHR entered into force on 3 September 1953. For the new democratic Government, it was a decision of principle to affirm its willingness to cooperate peacefully within the group of European States, submitting to an international review mechanism with regard to all of its activities. Therefore, very shortly afterwards, it accepted also the individual application under Article 25 ECHR, which at that time was not yet compulsory for all States parties. For many years under the Nazi dictatorship, Germany had brought death and destruction to its neighbours. Now, organized under a democratic and liberal constitution, the Basic Law (BL), it wanted to manifest its newfound identity as a civilized State abiding by the rule of law.

The Decision of the German Constitutional Court on the Immigration Act

2003 ◽  
Vol 4 (2) ◽  
pp. 91-106 ◽  
Author(s):  
Florian Becker
Keyword(s):  
Constitutional Court ◽  
German Politics ◽  
Basic Law ◽  
Starting Point ◽  
German Constitutional Court ◽  
Constitutional System ◽  
Shed Light

Even experienced scholars will have to think for quite a while when asked to remember whether a similar situation has ever occurred: A tiny constitutional provision in the organisational part of the Grundgesetz (GG – Basic Law), not exactly neglected by learned writers but definitely never seen as a source of major problems, became the starting point of one of the most emotional outbursts German politics has ever experienced. The said provision, Article 51.3(2) of the Basic Law, dealing with the voting procedure in the Bundesrat innocently says that the votes of one Land's representatives “can” (“können”) be cast only unanimously. In order to understand the causes for the earthquake that struck the German political and constitutional system in the 774th session of the Bundesrat on 22 March 2002 it is essential to shed light on the structure and the constitutional role of the Bundesrat.

Defiance by a Constitutional Court—Germany

2017 ◽  
Author(s):  
Franz C Mayer
Keyword(s):  
European Integration ◽  
International Cooperation ◽  
Constitutional Court ◽  
Future Developments ◽  
National Courts ◽  
Problematic Issue ◽  
German Constitution ◽  
German Constitutional Court

This chapter considers the highly problematic issue of defiance by a court. Notably, the chapter focuses on defiance by national courts in the context of European integration—a phenomenon which has occurred with some frequency. Still more specifically, this chapter turns to the German Constitutional Court’s approach to European integration. Though the 1949 German Constitution (the Grundgesetz) appears to be more open for European and international cooperation than most other constitutions on the continent, it too seems to be edging toward defiance. As a first step it is thus necessary to take a closer look at the broader picture of the German constitutional landscape, in particular at the German Constitutional Court and its decisions on European integration. Based on that broader account of cases, the chapter then assesses the degree and motivations of defiance and to reflect on possible future developments.

The Long and Difficult Road Towards Integration. The Legal Debate on the Maastricht Treaty in Germany and the Judgment of the Constitutional Court of October 12, 1993.

1994 ◽  
Vol 7 (1) ◽  
pp. 23-42
Author(s):  
Stephan Hobe
Keyword(s):  
European Integration ◽  
Maastricht Treaty ◽  
Constitutional Court ◽  
The European Union ◽  
German State ◽  
Democratic Control ◽  
German Constitutional Court ◽  
German Bundestag ◽  
Number Of Individuals ◽  
Difficult Road

At the end of 1992 the law ratifying the Maastricht Treaty was passed by the German Bundestag without much discussion. Yet a heated legal debate developed later when a number of individuals filed claims with the German Constitutional Court seeking to prevent the deposit of the instrument of ratification. They claimed a violation of their basic rights owing to the envisaged transfer of sovereign competence from the German State to the European Union, with the purported result of loss of democratic control. In its judgment of October 12, 1993, however, the German Constitutional Court gave its approval to ratification of the Maastricht Treaty. This article analyses and examines the arguments put forward in the claims, that raised questions of statehood and led to consideration of the scope and limits of European integration. The author concludes with a favourable appraisal of the judgment, although he comments that it leaves unanswered the question of how the concepts of European integration and ‘preservation of statehood’ are to be reconciled.

The Irish “Bail-Out” and Cuts to Social Protection Spending— the Case for a Right to a Subsistence Minimum in EU Law

2014 ◽  
Vol 15 (4) ◽  
pp. 569-597
Author(s):  
Roderic O'Gorman
Keyword(s):  
Social Protection ◽  
Constitutional Court ◽  
Welfare Benefits ◽  
Basic Law ◽  
European Court ◽  
Subsistence Minimum ◽  
German Constitutional Court ◽  
The Right ◽  
The Impact ◽  
Bail Out

As part of the 2010 EU/IMF economic adjustment program or “bail-out,” the Irish Government was required to undertake billions of euros in cuts to social protection spending over a three-year period. These have been implemented in subsequent budgets, resulting in increased levels of poverty and social exclusion. In light of these impacts on social rights in Ireland and other Member States, this article argues that the outcome of such Union legislative measures should be subject to some degree of rights-based scrutiny. It examines how, in theHartz IVdecision, the German Constitutional Court ruled that an attempt by the German Government to pass legislation that significantly cut a range of social welfare benefits breached the fundamental right to a subsistence minimum under the German Basic Law. Drawing inspiration from the approach of the German Constitutional Court, the article argues that the two elements of the German Basic Law which grounded that decision—the right to human dignity (Article 1(1)) and the social state principle (Article 20(1))—are both present within the Union Treaties as a result of changes occasioned by the Lisbon Treaty. The article advocates that the European Court of Justice should discover such a right within Union law and use it as a tool to analyze the impact of future cuts mandated by Union institutions on the economically disadvantaged.

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