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Tuesday 30 June 2009

It seems that the Constitutional Court is saying that Germany, at least, must ensure that their parliament - both houses - participates in major EU decisions.

The Frankfurter Allgemeine Zeitung says the Constitutional Court ruling is demanding a law to guarantee the rights of the German Parliament in the EU decision-making process.

If that is so, should not Oireachtas Eireann have a law requiring this too - and Westminster and Paris and Prague and Bucharest, and 22 others?

Should not all EU National Parliaments also have “participation in European lawmaking procedures”?

The most important operative paragraphs of the Court’s ruling seem to be these ones:

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

• The principle of conferral is therefore not only a principle of European law (Article 5.1 of the Treaty on European Union; Article 5.1 sentence 1 and 5.12 of the Treaty on European Union in its version of the Treaty of Lisbon ), but, just like the European Union’s obligation to respect the Member States’ national identity (Article 6.3 TEU; Article 4.2 sentence 1 TEU Lisbon), it takes up constitutional principles from the Member States. The integration programme of the European Union must therefore be sufficiently precise.

• To the extent that the Member States elaborate the law laid down in the Treaties in such a way that, with the principle of conferral fundamentally continuing to apply, an amendment of the law laid down in the Treaties can be brought about without a ratification procedure, a special responsibility is incumbent on the legislative bodies, apart from the Federal Government, as regards participation, which, in Germany, must, on the national level, comply with the requirements under Article 23.1 of the Basic Law (responsibility for integration).

• The act approving a treaty amending a European Treaty and the national accompanying laws must therefore be such that European integration continues to take place according to the principle of conferral without the possibility for the European Union of taking possession of Kompetenz-Kompetenz or to violate the Member States’ constitutional identity which is not amenable to integration, in this case, that of the Basic Law.

• For borderline cases of what is still constitutionally admissible, the German legislature must, if necessary, make arrangements with its laws that accompany approval to ensure that the responsibility for integration of the legislative bodies can sufficiently develop.

(Signed)

Anthony Coughlan
Director