Lisbon treaty and the German Constitution

[ori]

Something I have been waiting for for years is finally coming to pass: the German constitutional court will rule on the constitutionality of transferring more powers to the EU level.
The proceedings start today. Issues being debated are the democratic nature of the EU, the rights of the states in the federal republic of Germany and of course the rule that would prevent the German constitutional court from ever ruling on European issues again if this one passes muster.

The Federal Constitutional Court will from Tuesday, Feb. 10, consider claims that the proposed EU treaty calls into question the basic principles of representative democracy by undermining the power of national parliaments.
The complaint was brought by Peter Gauweiler, a conservative member of the Bundestag and a group of deputies from the Left party.
As part of written evidence submitted to the court, Gauweiler used the example of a German environment minister trying and failing to get a certain type of light bulb banned by the Bundestag.
After failing on the national level, the minister could bring the same initiative to the highest political body in the union, the European Council.
If the council -- consisting of heads of states of government of the union's member states -- decides to lend the proposal its support, a European Commission directive could be drawn up requiring that the light bulb ban be incorporated into German law, despite having been rejected by the national parliament.

 

[RedRalph]

Oh come on Winner, please tell me they should be kicked out

 

[ori]

just as an update on this - I have no english source yet but will provide one as soon as one is up.
The first of two days of hearings is over and a number of judges including the judge charged with preparing a decision ("Berichterstatter") voiced sharp criticism about some aspects of the treaty. No one yet knows where this will go though.

The last time the court ruled on a treaty was Maastricht - in which the court narrowly ruled the treaty constitutional but expressly reserved the right to rule on any EU decision as to the constitutionality. This right is now being removed with this treaty - hence some expectation that the treaty will not escape unchanged (it is likely that they'll allow this with instructions to the German parliament to amend the law ratifying the treaty so that any reservations the court has are included as exceptions to the treaty...).

Edit:

“We don’t have to judge the political decision to integrate Europe, but to examine whether constitutional requirements are observed in this process,” said Presiding Judge Andreas Vosskuhle. “The European idea as such isn’t on trial here.”

Udo Di Fabio, the judge in charge of drafting the court’s written judgment, asked whether the idea of “more and more EU competences” was “a danger to liberty.” Another judge said it may be questionable that the EU gained jurisdiction in some areas of criminal law, a subject that belongs to “the core area” of legislative powers of the national member states.

 

[Pannonius]

I hope these judges will have enough decency to rule this treaty unconstitutional.

 

[Riffraff]

I'm pretty sure that if the German constition proves inconpatible with the advancement of the EU, then the constitution will simply be changed.

 

[ori]

I'm pretty sure that if the German constition proves inconpatible with the advancement of the EU, then the constitution will simply be changed.

there are certain immutable articles in the Grundgesetz and plaintiffs argue with those - so if the court really chooses to kill this treaty I doubt that this will happen.
Tomorrow will be fun - plaintiffs will argue that the court should invoke Article 146 for any future attempt to ratify the Lisbon treaty - basically labeling the treaty a new constitution as was initially the official plan (I very much doubt the court will go there):

Article 146 [Duration of validity of the Basic Law]

This Basic Law, which since the achievement of the unity and freedom of Germany applies to the entire German people, shall cease to apply on the day on which a constitution freely adopted by the German people takes effect.

This would make the court require a referendum on the treaty

 

[Rashiminos]

Nah..., there's already too much high-level acceptance of the treaty. Wallow in your despair.

 

[Winner]

Oh come on Winner, please tell me they should be kicked out

No need, they'll pass the treaty