German Participation in EU Decision-Making after the Lisbon Case: A Comparative View on Domestic Parliamentary Clearance Procedures

Abstract

When the German Federal Constitutional Court pronounced itself on the constitutionality of the Treaty of Lisbon, its general reasoning on the character of the European Union sounded familiar. In its judgment, the Court recalls that the German Basic Law is a Europe-friendly constitution: its Preamble and its Article 23, regarding European integration, allow, and in fact prescribe, Germany's participation in the establishment of a united Europe. However, the Court also stresses the paramount position of the member states, their peoples, and their national parliaments in the institutional architecture of the EU. Already in its Maastricht Case, the Court had put an emphasis on institutional guarantees regarding the conditions under which sovereign competences may be conferred upon the EU from its constituent member states. The Lisbon Case builds upon the Maastricht doctrine, but now adds concrete instructions to the German legislature: whenever the EU institutions wish to apply certain strategic decisions under the Treaty of Lisbon, the German government may agree to them only after the two national legislative chambers, the German Federal Parliament (Bundestag) and the German Federal Council of States (Bundesrat), have given their prior approval. The national statute that regulates this must (and will) be changed accordingly before Germany may ratify the Treaty of Lisbon. The strategic decisions in question mainly concern what the Court considers to be, or at least potentially to be, de facto treaty amendment procedures by which EU institutions may dynamically expand their competences or change decision-making rules without having to resort to the regular ratification procedure for new treaties. The most prominent example is the so-called passerelle (or simplified treaty revision procedure), allowing the European Council unanimously, and with the European Parliament's assent, to introduce qualified majority voting and co-decision in areas where this does not yet apply. National parliaments are informed six months in advance and each of them may cast a binding veto, but ordinary positive ratification in all member states is not required. Also for the application of the flexibility clause, allowing for EU action to attain EU goals in the absence of a specific legal basis, the German Constitutional Court requires prior bicameral approval by the national legislature. The Court rejects the idea of future treaty amendment by tacit consent, because that would undermine the prerogatives of the national legislature and, essentially, German sovereign statehood. At the risk of sounding corny, we may therefore dub the Lisbon Case “Solange III,” after the two previous Solange Cases, and summarize it as follows: As long as (or, solange, in German) the European Union is not a federal state but comprises constituent member states, the people, through the national legislature, must consciously legitimize European integration step by step. The partially enhanced flexibility of future treaty reforms envisaged under the Treaty of Lisbon is, as far as Germany is concerned, undone. But what about the other member states? Where does the Lisbon case put Germany on the European map of parliamentary democracy? How do the ratification procedures on which the German Court insists compare with the procedures of national parliamentary oversight as they exist in the rest of the Union? The present article shall put the envisaged German procedures in a comparative perspective. But first it shall reflect on some of the main features of the judgment itself.