Prof. Thomas Fleiner Workshop 2Lisbon Treaty and

Democratic Governance

Belgrade Law FacultyMaster Course on

Comparative Constitutional Review

Prof. Lidija Basta FleinerProf. Thomas Fleiner

November 23 to December 12 2009

Question: In what sense does the Treaty of Lisbon further develop the principles of democratic governance? Please look at the question in the light of the arguments of the German Constitutional Court on Lisbon Treaty.

Institutional History

European Federal Constitution:

United States of EuropeAnd one European NationAnalogies to the Swiss Federal System

1948 in the HagueEuropean Congress Jean Monnet

1951 Draft of 70 Members of theAssembly of the Council of EuropeUnder Coudenhove- Kalergi

Rejected: Nation Interests, DefenseAgainst Communism

Europisation and common control of defense industry of Germany

At the same time: re-building of armedWest-Germany

European Community for Steel and Coal Accepted 1951

Common European Defense CommunityRejected by France

Idea of a political Union has alreadyBeen rejected during negotiations

1957: Treaties of RomeEuropean Atomic Energy CommunityEuropean Economic Community: 6 Members

Functional Approach:

Institutional Organization has been developed since:

1979 Direct election of a EuropeanParliament

1986: Unified European acts:

More decision with Qualified MajorityIn the Council

More competences of the EuropeanParliament

Formal institutionalization of theEuropean Council

Maastricht 1992 12 Members:Foundation of the European Union

Common Foreign and Security Policy

Cooperation in issues of Justice andInternal affairs

European Economic Union changed intoEuropean Community

New Competences: Education, Culture,Health, Consumer Protection and trans-European networks

European Parliament with power to decide

Amsterdam 1997

New Functions and Competences of theEuropean Union and the European Community with regard to labor

Competences of co-operation became Competences of the community:Asylum, Migration, Visa and JusticeCooperation in Civil affairs

New Representative for Foreign Affairs

Parliament Control of Commission

Nizza 2001 25 Members

Focus on Institutions

More issues to be decided byQualified Majority of the Council

Commission with the new ten Members of the Commission

States to accept a decision in theCouncil need to represent at least62 % of the population of the Community

Charter of Fundamental Rights

Declaration of Laeken 2001 with the goals of Reform:

1. Division of powers2. Simpler Instruments of Union with regard

to legislation etc.3.More democracy, transparency and

efficiency4.Road to a constitution for a European

Citizen

Constitional Treaty rejected in 2005

- Integration of Fundamental Rights Catalogue- Catalogue and Classification of Union compe- tences- New typology such as statutes etc.- Introduction of a new European citizen Ini- tiative - Establishment of new Neighborhood Policy- Enabling members to leave the Union- Simplified limited amendment procedure- participation of national parliaments to control subsidiarity

LissabonSept. 2007 27 Members

Preamble:Repeats mandate of AmsterdamEfficiency, democratic legitimacy,CoherenceFor the first time in EU history a treatyIntends to improve democratic legitimacy

No “constitutional” concept, no newText with one treatyNo regulation with regard to the SupremacyOf EU legislationForeign Minister now high representativeOf Foreign affairs

European Union is successor of EuropeanCommunityTreaty of European Community turns intoTreaty of functioning of European UnionAtomic Energy gets a new independentorganization

Fundamental Rights:- Charter of Fundamental Rights gets

Treaty obligation- Unwritten Rights of Union continue

to be in force as general principles - European Union is obliged to become

A member of the Human Rights Conven-tion

New Institutional Elements:

Democracy: Initiative of Citizens

Two bases of legitimacy:Parliament and Council

National Parliaments need to be consul-ted for legislative drafts

Appeal to the Court of justice to quashLegislation for violation of subsidiary clause

European Parliament: repres. Union Citizens

Decides on legislation in the ordinary Legislative procedure

Participation in decision on internationalTreatise

Budgetary decisions

Right to control commission

Election of president of commission onProposal of councilElection decided by council proposal parl.

Smallest states at least 6 members, biggerStates no more than 96 in total 750 + Pres.

European Council

Decides in General with qualified majority

Actual system with valued votes will beReplaced with double majority: 55% ofMemberstates and 65% of population

Discussion and vote in council are public

Amendment of Treaty:

Three procedures:

Classical: Each member must ratify

Simplified: Only unanimous decision ofCouncil not ratification of member states

Bridge-procedure: unanimous decision ofCouncil and approval of parliament: concerns majority in the council and Legislative procedure

Flexibility Clause

Exit possibility of member states

Competences:

Criminal Law, Police monopoly use of force, fiscal decisions on revenueAnd expenditures, social policy, cultural Issues on school and education and Media including religious communities

Major Arguments ofThe German ConstitutionalCourt

As long as, consequently, no uniform European people, as the subject of legitimization, can express its majority will in a politically effective manner that takes due account of equality in the context of thefoundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority.

In Germany, accession to a European federal state would require the creation of anew constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law.

With progressing integration, fields of action which are essential for the development of the Member States’ democratic opinion-formation must be retained. In particular, it must be guaranteed that the responsibility for integration can be exercised by the state bodies of representation of the peoples.

With its Article 23, the Basic Law grants powers to participate and develop a European Union which is de-signed as a Staatenverbund. The concept of Verbund covers a close long-term association of states which remain sovereign, an association which exercises pub-lic authority on the basis of a treaty, whose fundamen-tal order is, however, subject to the disposal of the Member States alone and in which the peoples of their Member States, i.e. the citizens of the states, remain the subjects of democratic legitimization.

The transfer of competences, which has been in-creased once again by the Treaty of Lisbon, and the independence of decision-making procedures there-fore require an effective ultra vires review and an identity review of instruments of European origin in the area of application of the Federal Republic of Germany.

To ensure the effectiveness of the right to vote and to Preserve democratic self-determination, it is necessa-ry for the Federal Constitutional Court to watch, within the boundaries of its competences, over the Commu-nity or Union authority’s not violating the constitutio-nal identity by its acts and not evidently transgressing the competences conferred on it.

To the extent that in these areas, which are of parti-cular importance for democracy, a transfer of sove-reign powers is permitted at all, a narrow interpreta-tion is required. This concerns in particular the admi-nistration of criminal law, the police monopoly, and that of the military, on the use of force, fundamentalfiscal decisions on revenue and expenditure, the sha-ping of the circumstances of life by social policy and important decisions on cultural issues such as the school and education system, the provisions gover-ning the media, and dealing with religious communi-ties.

d) The Basic Law does not grant the German state bodies powers to transfer sovereign powers in such a way that their exercise can independently estab-lish other competences for the European Union. It prohibits the transfer of competence to decide on its own competence (Kompetenz-Kompetenz).

e) The Federal Constitutional Court reviews whether legal instruments of the European institutions and bo-dies, adhering to the principle of subsidiarity under Co-mmunity and Union law (Article 5.2 ECT; Article 5.1 sentence 2 and 5.3 TEU Lisbon), keep within the boundaries of the sovereign powers accorded to them by way of conferred power (ultra vires review). Further-more, the Federal Constitutional Court reviews whe-her the inviolable core content of the constitutional identity of the Basic Law pursuant to Article 23.1 sentence 3 in conjunction with Article 79.3 of the Basic Law is respected (identity review).

CouncilHead of States

States

Councilof Ministers

Parliament

Peoples

Presi-dent

Commission

President

Foreign Aff.

European Union

People of the Union?