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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.