Right problem, wrong solution

The German Constitutional Court finally approved the Lisbon Treaty this week. But why was this necessary?

Success! The German Constitutional Court
has finally approved the Lisbon Treaty. This decision has symbolic value across
the EU –  newspapers from Portugal to Lithuania have commented on the
decision. The Czech and the Polish President will have a hard time delaying their
signatures now.

Indeed, the Karlsruhe decision is a
victory for European democracy . The ruling provides legitimacy for Europe and
European  integration in Germany: it is a reprimand for the Bundestag
which, in future, will need to look more closely at the legislation coming from
instead of immediately brushing it aside as ‘unconstitutional’. It presents a
chance to dent the eurosceptic arguments that continue plague the European
Project from issues as ardent as the amount of salt in bread to whether Europe should have a signal currency.  

However, there is a
huge ‘But’ in the ruling. Despite Karlsruhe’s
exaltations about the value and the necessity of European integration, there is
an obvious ‘national sovereignty’ spin littered through the judgment, which
sounds out of touch in these times of international interdependencies and
globalisation: the financial crisis demonstrates how exclusive national
decisions can fall short of what needs to be done. In this respect, the
decision is unfortunately conservative at its best.

With respect to the Maastricht goal of an
‘ever closer union’, this decision takes at least three steps back. Yes,
Karlsruhe intends to increase legitimacy of the European project, but it does
so through increasing the national screening of European legislation, whereas –
since the times of the Treaty of Maastricht and the idea of an ‘ever closer
union’ – the goal was to increase the European
level of legitimacy, meaning the competence of the European Parliament. The
decision is a slap in the face of these ambitions. Although it does not
entirely close the path to development of the European institutions, it makes
it harder – and in very practical terms, slower – towards overcoming the
European democracy deficit.

At its essence, the Karlsruhe decision will now lead, at least in Germany,
to an ‘ex ante’ screening capacity on all European legislation. To be sure,
there is nothing inherently wrong with increasing Europe’s
legitimacy. Quite the opposite: it is badly needed. But national screening of
European legislation is hardly they way to improve Brussels legitimacy. In fact, it will disrupt
the European system, making it ever more dysfunctional and create even more
inertia instead of paving the way towards European democracy.

Sticking to the
‘state’ as the only sovereign body frustrates global governance.  As the Lisbon Treaty says in its first
Article: we are a ‘Union of States and
Citizens’. In a way, if the German judges wanted to be consistent, they should
have had problems accepting the notion exposed in this Article 1.  Karlsruhe
in essence sends a warning: this time we say yes, but one more step towards a
centralised Brussels-based mandate, and we will not roll over so easily. This
type of thinking dangerous points to a German referendum on Europe.

European integration
did reach a level where a ‘founding act’ was needed.  But we are going backwards. At best, Karlsruhe delivers the impetus for a new, vigorous debate
on how much the EU is allowed to be involved in running Europe.
Can you image if all member states followed the Karlsruhe example? Put simply: it would result
in the death of the European Project.

The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of their individual authors.


ECFR Alumni · Former Senior Policy Fellow

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