Sunday, June 21, 2009

German court in blow to Lisbon

The German Constitutional Court has ruled that ratification of the Lisbon Treaty must cease pending additional legislation to strengthen the role of the national parliament in EU decisionmaking. The treaty's compatibility with the German Constitution was challenged by Conservative lawmaker Peter Gauweiller of the Christian Social Union, Bavaria's ruling party (and sister party to Mrs Merkel's CDU). It was also challenged by members of Die Linke, the far left party that evolved from the former East German Communist Party. Among the objections was the claim that provisions of the treaty meant the German Parliament could be bypassed by the German government, which could then collaborate with other governments to use powers without being subject of national parliamentary control or consent Other objections included the claim that the Lisbon Treaty gives the EU the form of a federal government without democratic control, and that its common foreign and security policy would lead to the militarisation of German foreign policy. The Court rejected these arguments. It found the Lisbon Treaty was in conformity with the German Constitution, and that the act of parliament ratifying the treaty was also constitutional. The problem that caused the court to pause the German ratification process is in the accompanying legislation on the role of the German parliament in EU decision making. 'The Act extending and strengthening the rights of the Bundestag and the Bundesrat in European Union matters' was found to be unconstitutional because it does not give the two chambers of parliament enough say on EU affairs. Specifically the problem lies with the procedures the Lisbon Treaty proposes for making changes to the EU treaties in the future. Lisbon has what is known as the 'general bridging clause' which allows the European Council to decide, unanimously, to move a competence from unanimity to Qualified Majority Voting. While all national parliaments most get six months notice of an intention to make such a change, and any one of them can veto the move, Germany's constitutional court said this was an insufficient role for the parliament. It insists that Germany's parliament must legislate to enable the German government to agree to this. A similar legislative safeguard is required for the 'Flexibility Clause', where EU leaders can (acting unanimously, and with the prior consent of the European Parliament) give themselves power to attain one of the objectives of the EU as set out in the treaties, but where the treaties themselves have not provided the necessary powers. National parliaments must be notified by the Commission. But Germany's court ruling goes further, insisting that the Federal parliament must pass an act giving consent to the German government. The court also listed some other areas where the parliament's role has to be defined in law before Lisbon can be ratified - notably in the fields of criminal law and the definition of cross border crimes (an extension of the list will now require a German act of parliament), the so called 'emergency brake' procedure in Judicial co-operation, which the court says requires parliamentary approval before use.The ruling underlines "no" campaign concerns about the impact of the Treaty on the democratic-deficit in the European Union, not least with respect to the role (or lack of it) of national parliaments. Lisbon will allow the Government to further erode the national-veto and to do so without the consent of the Irish people in a referendum. Article 48 of the Treaty on the European Union as amended by Lisbon allows for a "simplified revision process", whereby the text of the Treaties can be amended by the Council of the European Union (heads of government) without recourse to national parliaments or electorates. And while the Protocol on the Role of National Parliaments does afford them 8 weeks notice of new legislation initiated by the European Commission, they are not empowered from obstruct EU legislation itself.

The ruling comes amidst growing controversy over the status of the 'legal guarantees' offered to Ireland to help the Government win a second referendum on the Lisbon Treaty. UK Europe Minister Baroness Kinnock (wife of former Labour leader Neil Kinnock) has told the House of Lords that they will not have the force of EU law until added as a Protocol to a future Accession Treaty. She said: "Those guarantees do not change the Lisbon treaty; the European Council conclusions are very clear on them. The Lisbon treaty, as debated and decided by our Parliament, will not be changed and, on the basis of these guarantees, Ireland will proceed to have a second referendum in October." She added: "Nothing in the treaty will change and nothing in the guarantees will change the treaty as your Lordships agreed it....My Lords, what we have in the guarantees will become binding in international law when the guarantees are translated into a protocol at the time of the next accession, which presumably will be when Croatia or Iceland comes in. Before that protocol can be ratified by the UK, Parliament must pass a Bill. As I said, Parliament will rightly have the final say." But Foreign Secretary David Milliband appeared to contradict her during questions at the House of Commons European Scrutiny Committee yesterday, stating: "Every head of state agrees that these guarantees do not change the Treaty...the guarantees are legally-binding in international law... It does not require ratification in order to have legal affect." This lead the Chairman of the Committee to ask, "If this is a legally-binding decision and doesn't need ratification, why does it need to be put in a protocol?" He asked, "Is it a stitch-up to get around Irish peoples' concerns? I can see why people would be suspicious." To confuse things further, Liberal Democrat MEP and self-described "militant federalist" Andrew Duff has claimed that an Irish Protocol appended to an Accession Treaty would be challenged in the courts as it would violate EU law, saying: "Adding this protocol to the Croatian accession treaty would leave the treaty wide open to attack in the courts...".According to the Irish Times, "he added that rules in the EU treaties governing accession treaties only allow issues pertaining to a state's accession to be dealt with." Clearly, the credibility of the Government's 'guarantee's is not something they can take for granted. I, for one, am far from convinced of their veracity.

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