Transcript Slide 1

Belgrade Law Faculty
Master Course on
Comparative
Constitutional Review
Prof. Lidija Basta Fleiner
Prof. Thomas Fleiner
November 23 to December 12
2009
Prof. Thomas Fleiner Workshop 2
Lisbon Treaty and
Democratic Governance
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:
1948 in the Hague
European Congress Jean Monnet
1951 Draft of 70 Members of the
Assembly of the Council of Europe
Under Coudenhove- Kalergi
United States of Europe
And one European Nation
Analogies to the Swiss Federal
System
Rejected: Nation Interests, Defense
Against Communism
Europisation and common control
of defense industry of Germany
At the same time: re-building of armed
West-Germany
European Community for Steel and Coal
Accepted 1951
Common European Defense Community
Rejected by France
Idea of a political Union has already
Been rejected during negotiations
Functional Approach:
1957: Treaties of Rome
European Atomic Energy Community
European Economic Community:
6 Members
Institutional Organization has been
developed since:
1979 Direct election of a European
Parliament
1986: Unified European acts:
More decision with Qualified Majority
In the Council
More competences of the European
Parliament
Formal institutionalization of the
European Council
Maastricht 1992 12 Members:
Foundation of the European Union
Common Foreign and Security Policy
Cooperation in issues of Justice and
Internal affairs
European Economic Union changed into
European Community
New Competences: Education, Culture,
Health, Consumer Protection and transEuropean networks
European Parliament with power to
decide
Amsterdam 1997
New Functions and Competences of the
European Union and the European
Community with regard to labor
Competences of co-operation became
Competences of the community:
Asylum, Migration, Visa and Justice
Cooperation in Civil affairs
New Representative for Foreign Affairs
Parliament Control of Commission
Nizza 2001 25 Members
Focus on Institutions
More issues to be decided by
Qualified Majority of the Council
States to accept a decision in the
Council need to represent at least
62 % of the population of the
Community
Commission with the new ten
Members of the Commission
Charter of Fundamental Rights
Declaration of Laeken 2001
with the goals of Reform:
1.
2.
3.
4.
Division of powers
Simpler Instruments of Union with regard
to legislation etc.
More democracy, transparency and
efficiency
Road to a constitution for a European
Citizen
Constitional
Treaty rejected in 2005
- Integration of Fundamental Rights Catalogue
- Catalogue and Classification of Union competences
- New typology such as statutes etc.
- Introduction of a new European citizen Initiative
- Establishment of new Neighborhood Policy
- Enabling members to leave the Union
- Simplified limited amendment procedure
- participation of national parliaments to
control subsidiarity
Lissabon
Sept. 2007 27 Members
No “constitutional” concept, no new
Text with one treaty
No regulation with regard to the Supremacy
Of EU legislation
Foreign Minister now high representative
Of Foreign affairs
Preamble:
Repeats mandate of Amsterdam
Efficiency, democratic legitimacy,
Coherence
For the first time in EU history a treaty
Intends to improve democratic legitimacy
European Union is successor of European
Community
Treaty of European Community turns into
Treaty of functioning of European Union
Atomic Energy gets a new independent
organization
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 Convention
New Institutional Elements:
Democracy: Initiative of Citizens
Two bases of legitimacy:
Parliament and Council
National Parliaments need to be consulted for legislative drafts
Appeal to the Court of justice to quash
Legislation for violation of subsidiary
clause
European Parliament: repres. Union Citizens
Decides on legislation in the ordinary
Legislative procedure
Participation in decision on international
Treatise
Budgetary decisions
Right to control commission
Election of president of commission on
Proposal of council
Election decided by council proposal parl.
Smallest states at least 6 members, bigger
States no more than 96 in total 750 + Pres.
European Council
Decides in General with qualified majority
Actual system with valued votes will be
Replaced with double majority: 55% of
Memberstates 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 of
Council not ratification of member states
Bridge-procedure: unanimous decision of
Council 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 revenue
And expenditures, social policy, cultural
Issues on school and education and
Media including religious communities
Major Arguments of
The German Constitutional
Court
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 the
foundation 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 designed as a Staatenverbund. The concept of Verbund
covers a close long-term association of states which
remain sovereign, an association which exercises public authority on the basis of a treaty, whose fundamental 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.
To ensure the effectiveness of the right to vote and to
Preserve democratic self-determination, it is necessary for the Federal Constitutional Court to watch, within
the boundaries of its competences, over the Community or Union authority’s not violating the constitutional identity by its acts and not evidently transgressing
the competences conferred on it.
The transfer of competences, which has been increased once again by the Treaty of Lisbon, and the
independence of decision-making procedures therefore 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 the extent that in these areas, which are of particular importance for democracy, a transfer of sovereign powers is permitted at all, a narrow interpretation is required. This concerns in particular the administration of criminal law, the police monopoly, and
that of the military, on the use of force, fundamental
fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy and
important decisions on cultural issues such as the
school and education system, the provisions governing the media, and dealing with religious communities.
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 establish 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 bodies, 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 boun
daries of the sovereign powers accorded to them by
way of conferred power (ultra vires review). Furthermore, the Federal Constitutional Court reviews wheher 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).
States
Peoples
European Union
Council
Head of States
President
Parliament
President
Council
of Ministers
Commission
People of the Union?
Foreign Aff.