Lisbon in Karlsruhe: Maastricht's Epigones At Sea

Abstract

On 30 June 2009, the Second Senate of the German Federal Constitutional Court handed down its long-awaited decision on the compatibility of the Treaty of Lisbon with the German Constitution, the Basic Law. It was no surprise that the Court upheld the constitutionality of the treaty. Even the plaintiffs could not have imagined in their wildest dreams that the Court would actually say “no”. What is more than disturbing, however, is the tortuous way in which the Court's vast and verbose opinion purports to be justifying the approval of the treaty. There is probably no other judgment in the history of the Karlsruhe Court in which the argument is so much at odds with the actual result. To the point of perplexity and bewilderment, the reader of the opinion is hardly able to find any reasons supporting the outcome of the case. At the moment when the Court approves the most far-reaching revision of the European founding treaties since Maastricht, it does not present any serious argument supporting the conclusion it has reached, except sketchy evocations of a principle of “openness towards European law” it finds enshrined in the Basic Law and brief solemn reminders of a murderous past. Instead, the main thrust of the argument is a ringing indictment of European integration based on a certain idea of egalitarian and majoritarian parliamentary democracy that the Court derives from the Basic Law. Unfortunately, this standard of democratic legitimacy can only describe certain centralized states; it is unable to account for federal States, including Germany, and cannot be made to fit the federal system of the European Union.