IMI-Analysis 2009/031en
Verdict of the German Constitutional Court concerning the Lisbon Treaty: Court strenghtens Parliamentery Prerogative
But the Lisbon Treaty was made compliant with the constitution – now the Irish referendum is decisive
von: Tobias Pflueger | Veröffentlicht am: 6. August 2009
by Tobias Pflüger
On June 30 the German Constitutional Court decided in an exciting verdict whether the Lisbon Treaty is unconstitutional. But the court used a trick by declaring the treaty per se as constitutionally compliant, but at the same time declaring that part of the accompanying legislation as unconstitutional, which was used by the Bundestag (lower house) and Bundesrat (upper house) to ratify the treaty: “The law about the extension and strengthening the rights of the Bundestag and Bundesrat regarding the affairs of the European Union (extension law) is violating article 38 (1) as related to article 23 (1) of the constitution insofar as the participatory rights of the German Bundestag and Bundesrat have not sufficiently been developed.“
This pertains to a number of points in the Lisbon Treaty for which the Federal Constitutional Court claims that the Bundestag and Bundesrat tried to disempower themselves. An important aspect is the decision-making process regardingmilitary deployments of the European Union.
In the verdict it says that the appeal of the petitioners is justified in this regard “as far as the applicant claims a violation of the decision-making power of the German Bundestag concerning the deployment of German military forces.” And “A similarly distinct borderline is drawn by the constitution concerning decisions about the deployment of the federal army. Except for the state of defence, a deployment abroad is only allowed within the system of mutual collective security (article 24 [2] of the constitution), while the concrete deployment constitutionally requires the approval by the Bundestag. The federal army is a ‘Parliamentary Army’, and therefore the representative organ of the people has to decide about its use.“
The Lisbon Treaty creates vast new military competence for the EU. This is unfortunately confirmed by the Federal Constitutional Court in its verdict. But fortunately the Federal Constitutional Court has corrested the fact that the German Bundestag had disempowered itself by its approval of the Lisbon Treaty.
The judges clarified: only the German Bundestag is empowered to decide about foreign military deployment of the federal army. According to the Federal Constitutional Court, the disempowerment of the Bundestag concerning decisions about military deployments of the EU as it is stipulated by the Lisbon Treaty and the German accompanying legislation is unconstitutional.
One of the questions was, who is going to decide whether the german federal army will participate in a military operation of the EU. The judges of the Constitutional Court have now clarified that this is the exclusive authority of the Bundestag.
The verdict says: “In this case (the decision about a military deployment by the European Council, T.P.) the German representative in the council would be constitutionally obliged to refuse his approval of any proposed resolution which would violate or circumvent the constitutional prerogative of the parliament concerning military issues.”
This statement of the verdict becomes particularly interesting with regard to the “Permanent Structured Cooperation” according to Protocol No. 10 of the Lisbon Treaty. The protocoll calls for themilitary deployment of “EU Battle Groups” within five to 30 days. However, after the verdict of Karlsruhe (seat of the German Federal Constitutional Court, translators note), a German participation in such rapid deployment will be practically impossible, because it would be necessary for the Bundestag to convene every time prior to the European Council decision about the deployment of EU Battle Groups with German participation. The Bundestag would first have to take a decision about the foreign mission of German soldiers. The constitutional verdict is a kind of parliamentary shackle for the Battle Groups.
The Bundestag will have to pass a new accompanying law for the Lisbon Treaty in two extraordinary sessions scheduled for 26 August and 08 September – the middle of the parliamentary summer break and the ongoing federal elections campaign. It is still unclear how the Bundestag will participate in the decision making about rapid reactionmissions of the EU. In “practice” – e.g. last year’s war in Georgia – convening the Bundestag on such a short notice is highly unrealistic. It might well be that the function of the Battle Groups as rapid intervention troops will be jeopardised or even paralysed by this procedure. Even the proposed solution of Christian Schmidt, the Parliamentary State Secretary to the Federal Minister of Defence, to solve the constitutional conflict by issuing a “permanent (parliamentary) approval” for the deployment of EU battle groups is incompatible with the verdict of the Constitutional Court.
Ireland – second round an further tricks
However, the Lisbon Treaty is not prevented by this verdict in Germany. Therefore, everything is now depending on Ireland, where a new referendum will be held on October 2nd , because in the past the Irish people were so recalcitrant to clearly say “No” to the treaty. At the EU summit in June, a declaration called “additional protocol” was passed. To become effective, this declaration has to be ratified by all EU member states. It is planned that the EU member states will sign this declaration e.g. on the occasion of Croatia’s accession to the EU with subsequent ratification by the national parliaments. This declaration contains three items: Fiscal policy, legislation on abortion and military policy. The goal is to pacify at least some of those who voted against the Lisbon Treaty in the past, hoping to gain a majority for a Yes during the second referendum on the Lisbon Treaty in Ireland on October 2nd .
Of particular interest is the section about “Security and Defence”. It is alleged that Ireland’s neutrality will not be affected. But this is not correct: The collaboration between the EU and the NATO remains a significant element of the Lisbon Treaty. A number of affirmative references are made regarding NATO. Protocol No. 10 states: “CONVINCED that a more assertive Union role in security and defence matters will contribute to the vitality of a renewed Atlantic Alliance, in accordance with the Berlin Plus arrangements…” This is an open violation of the Irish neutrality.
The additional protocol will not change the fact that the Lisbon Treaty would convert the EU into a military union. All military elements of the treaty are going to persist: the military “solidarity clause” (article 222) – more rigid than the solidarity clause of the NATO – converts the EU into a military alliance and enables the use of military forces inside the EU. Article 42 obliges the member states to a build-up of arms. The “Permanent Structured Cooperation” makes a militarized “Core Europe” possible: Only those countries will decide about military deployments which participate in them. For the first time the EU budget can be used for military purposes using the “Start-up Fund”. Until now this is prohibited by the EU treaties. For the first time, the Lisbon Treaty would anchor EU Battle Groups and the Armament Agency by primary law, i.e. to abolishthem again, a new EU treaty would be necessary.
The so called “additional protocol” affirms the correctness of our critique of the military consequences of the Lisbon Treaty. Now, using trickery, it is intended to finally push through the Lisbon Treaty. The Irish people voted with a clear “No”. Now they are supposed to vote time and again until self-proclaimed EU elite is satisfied with the the result . The “concessions” of the new “additional protocol” are cosmetics without any obligation.
Representatives of the progressive Irish No-campaign have asked to make use of the second referendum on the Lisbon Treaty in Ireland as quasi an EU-wide ballot. They asked for support from progressive NO-activists of other EU countries. We will comply with this request. We will struggle for a victory of the “NO” to this neoliberal and militaristic Lisbon Treaty during the second referendum in Ireland too. No means No!
