Herrschaft, Legitimation und Recht in der Europäischen Union – Anmerkungen zum Lissabon-Urteil des BVerfG

The »Lisbon« decision of the German Federal Constitutional Court marks the beginning of a new era in the legal relationship between the Union and its Member States. It views the Lisbon Treaty, drafted as a reformatory opus magnum to overcome the standstill in European integration, through the lens of German constitutional law only, thereby maintaining the dualism between EU and domestic law. Considering a vast spectrum of developments under the Union's primary law, it uses this review to create substantial reservations which aim at protecting core aspects of German constitutional law. Insofar, the decision follows in broad lines the Maastricht judgement of the same Court of 1993 but, intensifies the scrutiny of those areas which today are considered as »vital« from the constitutional point of view, in particular issues of competence. Several lines of thought, however, have to be distinguished within the judgement. The operative part of the decision refers to the constitutional deficiency of domestic statutes only which formulate the role and rights of the German Bundestag and Bundesrat towards the government. The Court stresses that far more and intense powers are required by Article 23 of the Grundgesetz and spells out explicitly which future amendments of the Lisbon Treaty will trigger which specific parliamentary procedures. All other layers of the decision are non-operational but, in their general language they raised massive criticism by scholars. The central theme of the Court is the question of how competences of the Bundestag and thereby the strength of the domestic democratic system could be safeguarded in a situation where the Union exercises competences in nearly all fields of political life. This shift of competences is not merely a vertical one but also a horizontal one since the executive branch, constituted by the Commission, the European Council, the Council and the national governments, holds a strong grip on all decisions. Implicitly, the Court is still critical about the role of the European Parliament, arguing that is was not elected on the basis of an equal vote but of national quota. It is this view which leads the Court to argue that first, a future European State can only be realised by a referendum in Germany, second as long as this is not the case, it will protect the identity of the constitution sub specie the democratic principle and third it will control – exceptionally – the exercise of competences by the Union. The last two points, however, were spelt out as principles only. It will take more decisions to see whether the Court follows a line of confrontation with the European Court of Justice or whether, what seems to be more probable, it will exercise its role under very narrow circumstances only, leaving wide room of manoeuvre for the Union's organs.