Lisbon Treaty Constitutionality Case [Federal Republic of Germany, Federal Constitutional Court (BVerfG)]

Summary: The facts:The subject matter of the six proceedings consolidated for joint adjudication was the ratification of the Treaty of Lisbon, the international agreement amending the Treaty on the European Union and the Treaty establishing the European Community, based on Article 48 of the Treaty of the European Union (the TEU). The proceedings concerned the German Act Approving the Treaty of Lisbon and, in part, its two accompanying laws.

When it had become clear that, following its rejection in referenda in certain Member States, the Treaty establishing a Constitution for Europe would not enter into force, the Treaty of Lisbon was negotiated between the Member States. The Treaty of Lisbon was intended to retain a large part of the contents of the earlier treaty, while abandoning any symbols of a constitutional character and renouncing the constitutional concept. Nevertheless, the Treaty of Lisbon still provided for fundamental changes to the structure and workings of the European Union, including conferring legal personality upon the Union. The Treaty of Lisbon was signed by the twenty-seven European Union Member States on 13 December 2007, after which it was to undergo the procedures for ratification in each Member State.

The German Bundestag adopted the Act Approving the Treaty of Lisbon (the Approving Act), which was then approved by the Bundesrat and entered into force. Further, the Bundestag, and subsequently the Bundesrat, adopted two laws that accompanied the Approving Act: the Act Amending the Basic Law (the Amending Act), which was to enter into force on the same day as the Treaty of Lisbon, and the Act Extending and Strengthening the Rights of the Bundestag and Bundesrat in Matters concerning the European Union (the Extending Act). At the relevant time, the Extending Act had not been promulgated, because to do so required the amendment of Articles 23 and 45 of the Basic Law through an Act amending the Constitution which would have to enter into force first.

Three complainants applied for an interim order preventing the Federal Republic of Germany from being bound by the Treaty of Lisbon under international law. As a result, the Federal President indicated that he would not sign the document of ratification until the Federal Constitutional Court ruled on the merits of the complaint.

Two of the initiated proceedings were in the form of Organstreit proceedings and four were constitutional complaints. The first Organstreit proceeding was initiated by an individual and the second by a parliamentary group. Three of the constitutional complaints were initiated by individuals and one was initiated by a group of members of the Bundestag.

The complainants in all constitutional complaint proceedings challenged the Approving Act and two of the complainants challenged the Amending and the Extending Acts as well. They concurred in their submission that their right under Article 38 of the Basic Law (granting them, as Germans entitled to vote, the right to participate in the elections to the Bundestag, to take part in the legitimization of the State authority on the federal level and to influence its exercise) was violated. They maintained that the transfer of powers to the EU effected in the Approving Act encroached upon this right as it withdrew the legitimization and exercise of State authority from the influence of the complainants. This encroachment transgressed the constraints of the authorization to integrate in Articles 23(1) and 79(3) of the Basic Law and was therefore not justified.

It was submitted that the principle of democracy, enshrined in Articles 23(1) and 79(3) of the Basic Law, was violated in two respects: because the competences of the Bundestag were undermined and because of a lack of democratic legitimization of the EU. Further, the threshold to the insignificance of the original German legislative competences was crossed by the transfer of powers in the Treaty of Lisbon. This amounted to a sell-out of the state's very own competences. It was also asserted that the democratic foundations of the EU had not been able to keep pace with the process of integration. Finally, it was claimed that the Approving Act resulted in Germany losing its statehood.

The applicants in the Organstreit proceedings challenged the Approving Act and, in part, its accompanying laws. The individual applicant argued inter alia that the Approving Act and its accompanying laws violated his Statusrecht as a member of the Bundestag (Article 38(1) of the Basic Law). The parliamentary group acting on behalf of the Bundestag made an application to find that the Approving Act violated the rights of the Bundestag as a legislative body, as it transferred powers concerning democratic decision-making beyond the extent permitted by Articles 23(1) and 79(3) of the Basic Lawand therefore was rendered incompatible with the Basic Law.

Held:(A) The first Organstreit application was dismissed as inadmissible. The second was deemed admissible to the extent that the alleged violation of the powers of the Bundestag concerned the deployment of the German armed forces but was ultimately rejected as unfounded.

(B) The constitutional complaints were held to be admissible to the extent that they alleged a violation of the principle of democracy, the loss of statehood of the Federal Republic of Germany, and a violation of the Sozialstaatsprinzip (principle of the welfare state), and were based on Article 38(1) of the Basic Law. They were also held to be partly well founded because, although the Treaty of Lisbon, the Approving Act and the Amending Act complied with the constitutional requirements, the Extending Act infringed Article 38(1) and Article 23(1) of the Basic Law. The constitutional complaints were rejected as unfounded in all other respects.

(C) The Federal Republic's instrument of ratification could not be deposited before the entry into force of a reformulated Act containing the constitutionally required legal elaboration of the rights of participation as specified in the judgment.

(1)(a) The standard of review was the right to vote (Article 38(1) of the Basic Law) as a concrete element of the principle of democracy, which belonged to the constitutional principles declared inviolable by Article 79(3) of the Basic Law and was not amenable to weighing with other legal interests. From this perspective, a violation of the constitutional identity (Verfassungsidentitt), which was codified in Article 79(3) of the Basic Law, was an infringement of the constituent power of the people. No power to amend these essential constitutional principles was accorded (paras. 20818).

(b) On the other hand, the Basic Law and the principle of democracy were open to the objective of integrating Germany into an international and European peaceful order. This permitted a different system of forming political opinion than the one determined by the Basic Lawwith a limit being the inalienable constitutional identity. The principle of openness towards Europe (Europarechtsfreundlichkeit) allowed for a far-reaching transfer of sovereign powers to the EU on the...