Ratification assured, repercussions to be looked into. The analysis of the repercussions of the ruling of the German Constitutional Court about the Treaty of Lisbon is set to continue even after this Treaty has entered into force. Initial reactions aimed mainly to provide a response to the immediate question: will the entry into force and application of this Treaty be held up by this ruling? The answers were by no means uniform. Some laid emphasis on the Court's view that the Treaty of Lisbon is compatible with the German Constitution; others on the need for Germany's ratification to be preceded by a reaffirmation of the powers of the national parliament over any subsequent evolution of the European treaties. Which of these two aspects represents the main element of the ruling? All parties answered as they saw fit; but the German authorities have stated that the condition brought about by the Constitutional Court would be satisfied next September, which gave grounds to conclude that Germany would ratify some time after the second Irish referendum (see this section in our bulletin 9934).
This politically essential statement does not fully answer the question; it is the future repercussions of the ruling that lawyers are trying to clarify. There are increasing numbers of analyses (even though the legal services of the Community institutions are declining to speak publicly for the time being) and the conclusions are by no means all identical. Without claiming to provide any comments on what the lawyers have said, it seems to me that the new rules brought in by the Treaty of Lisbon are not themselves called into question: from the time of their explicit approval by the national ratifications, the democratic principles are observed. It is any future modifications to institutional functioning which are the problem.
All of the Member States are involved. The Treaty allows the institutions of the EU to change a number of the rules of functioning of the EU, such as bringing in the majority rule in areas in which unanimity is still required. The German Court takes the view that the institutions of the EU do not possess sufficient democratic legitimacy to bring in provisions which then become obligatory, even for such Member States as oppose them. As the EU is not a Federation, the competences of the national parliaments regarding future developments must be respected. The ruling refers to the German parliament, but all of the Member States are involved. If Germany makes the approval of certain future decisions of the EU conditional upon the approval of its national parliament, other Member States could decide that the conditions of equality are not being respected, even though internal German standards were limited to any new decisions with constitutional scope. If this is boiled down in a way which may be somewhat simplistic, it could be said that the Constitutional Court has taken the view that a number of provisions of the Treaty of Lisbon anticipate a federal system, even though the EU is not a Federation. Obviously, I am in a position neither to comment on their legal arguments, nor to anticipate the potential results of the analyses underway.
EP/national parliaments cooperation is already a reality. It is, however, worthwhile stressing that for some 10 years now, relations between the national parliaments and the European Parliament have been amply discussed and analysed and that significant collaboration has been achieved- and that it works. To start with, a certain mutual mistrust was in evidence, as the EP was keen to affirm its powers and autonomy. The misunderstandings were clarified and today, we can genuinely speak of cooperation. The "declaration on the future of the Union" which was annexed to the Treaty of Nice (2001) put this problem at the very centre of the reinforcement of the democratic legitimacy of the EU and the "Declaration of Laeken" called for a reflection on the role of the national parliaments "in areas of European action for which the European Parliament is not competent". "Subsidiarity" was one of the pillars of the work of the Convention, which decided to give the national parliaments control of the principal, by giving them the ability to intervene in European legislative activity, particularly by means of an early warning system.
Without waiting for the new Treaty, efficient forms of cooperation had been implemented; the Treaty of Lisbon clarifies and reinforces them. To a certain extent, this Treaty represents a partial operational response to the comments and objections of the German Constitutional Court. On this issue, lawyers have quoted articles 5 and 12 of the Treaty on European Union, articles 69 and 352 of the Treaty establishing the European Community and the first two protocols annexed to it, and the procedures applied by the Danish parliament to ensure that the principle of subsidiarity is being respected. A basis exists.
(F.R./trans.fl)