This shows the convoluted and diabolically devious mess we are
enmeshed in - like a fly glued to a fly-paper.
"If the German judges block the treaty
altogether, or impose conditions that can't easily be fulfilled
within the next year or so, then the Irish government (and David
Cameron, and the Czech and Polish Presidents) will be off the hook.
However if the judges let the treaty pass without significant
objections, that should strengthen the case for a "yes" vote in
Ireland. Conversely, it could help the "no" side if the court allows
the treaty to be ratified, but with obvious reluctance and the public
expression of major reservations which would also be relevant to
Ireland."
xxxxxxxxxx cs
===========
SPIEGEL INTERNATIONAL 16.2.09
LISBON TREATY IN THE SPOTLIGHT
Germany Considers Putting Brakes on EU Power
By Dietmar Hipp in Karlsruhe
Germany's highest court is currently considering whether the Lisbon
Treaty is compatible with the country's constitution. The issue
raises serious questions about where the limits of European power
should lie.
Last Tuesday, the judges at Germany's highest court learned just how
difficult it is to have the last word in Europe. The Federal
Constitutional Court in the southwestern city of Karlsruhe had hardly
begun its hearing on the Lisbon Treaty when a higher power -- the
European Court of Justice -- intervened. The Luxembourg-based rival
court's demonstration that there are no limits to the Eurocrats'
claim to power -- was spread by whispers through the German courtroom.
The European judges had just given their blessing to the enactment of
an EU guideline. It relates to new data storage rules, which now
require that telecommunications companies throughout Europe keep
telephone and Internet usage data on file for six months to make it
available for criminal prosecutions. The question was: Does such a
far-reaching measure need to be approved by all member states for it
to come into effect?
The answer from Luxembourg was no. The court's reasoning seemed
bizarre. The judges argued that the issue of data storage is less
pertinent to fighting terrorism than to the European single market.
And a simple majority -- rather than the unanimous vote which would
have been required if the measure had fallen under the EU's crime and
judicial affairs pillar -- is sufficient to rule on questions
relating to the single market.
.It's a cunning line of argumentation which effectively allows the
court to intervene in many different political spheres within member
countries.
The Karlsruhe judges were visibly indignant when discussing
precautions designed to impose limits on such trickery in the future.
It's true that, after the end of the hearings, the indications were
that the court will not declare the Lisbon Treaty unconstitutional.
But the German constitutional judges will probably call for
significant changes to German parliamentary law so that the reform
treaty can come into force.
The treaty, with its jumble of confusing clauses and cross-
references, contains new, sweeping authority that would give Brussels
new jurisdiction at the expense of national parliaments. The "power
of disposal over primary law" that the treaty would grant the EU's
bodies could also be described as the EU's "jurisdiction over
jurisdictions," argued Udo Di Fabio, the judge charged with drawing
up the ruling. This would amount to a kind of "self-service"
mechanism by which the EU could expand its own powers without
recourse to new treaties. Such a mechanism would be difficult to
reconcile with the provisions of the German constitution.
Here is an example of how the treaty would encroach on national
authority: Under the Lisbon Treaty, the EU can define certain
criminal cases, such as those involving terrorism, human trafficking
or cyber crime, as "transnational." But, "depending on developments
in criminality," the Council can expand the EU's jurisdiction to any
other aspects of criminal law as soon as there is a possibility that
they will become transnational -- in other words, virtually always.
The potential conflicts are foreseeable. For instance, it would be
difficult to persuade the Dutch that assisted suicide should be a
crime. It would be just as hard to convince the Germans that hashish
should be decriminalized.
The judges on Germany's Constitutional Court were troubled by such
provisions. Judge Herbert Landau pointed out that decisions involving
the application of criminal law to "moral and ethical value
judgments" would have to be "debated by German lawmakers."
This is precisely where the judges on the Constitutional Court will
probably focus their efforts, in order to come to grips with the
dangers of the Lisbon Treaty at the national level. They could
require the German parliament, the Bundestag, to incorporate a kind
of "emergency brake" into the Brussels mechanism.
This would be possible, technically speaking, because governments can
only approve expansions of powers at the European level by unanimous
vote. In other words, the consent of the federal government would
have to be firmly tied to that of the Bundestag.
This sort of veto could prevent representatives of the federal
government from relinquishing powers too hastily. The Constitutional
Court is concerned about how international bodies like the World
Trade Organization (WTO) will treat German special interests in the
future. What happens if, as the Lisbon Treaty provides, one high-
handed member decides to speak for all 27 EU countries?
Because "the music of globalization is playing" at the WTO, the
judges argue, the issue of who has the say there cannot be
irrelevant. They fear that even the German water supply could be sold
off one day in what Di Fabio calls the WTO's "bazaar atmosphere."
A veto, however, is only useful with those decisions that must be
made unanimously. But all areas of domestic and legal policy where
competency is transferred to the European bodies under the Lisbon
Treaty would be exempt from the unanimity requirement. Even worse,
the European Council can also decide to apply the majority vote
principle to decisions that would normally require a unanimous vote.
If that happens, Germany could simply be overruled, such as on the
question of joint military operations abroad. The only safeguard is
that the decision on which mode of voting to apply -- a majority or
unanimous vote -- must be unanimous.
But, the judges asked astutely, does the confusing treaty also make
it possible to simply do away with the unanimity requirement when it
comes to expanding the EU's competencies?
The court heard arguments by one of the most fervent advocates of
European rights, Berlin Professor Ingolf Pernice. His response, after
lengthy deliberation: No, but "in an emergency" things would probably
be different. [There's the Delphic Oracle for you -cs]
---------------------------------------------------------------------
Translated from the German by Christopher Sultan
SPIEGEL INTERNATIONAL 16.2.09
LISBON TREATY IN THE SPOTLIGHT
Germany Considers Putting Brakes on EU Power
By Dietmar Hipp in Karlsruhe
Germany's highest court is currently considering whether the Lisbon
Treaty is compatible with the country's constitution. The issue
raises serious questions about where the limits of European power
should lie.
Last Tuesday, the judges at Germany's highest court learned just how
difficult it is to have the last word in Europe. The Federal
Constitutional Court in the southwestern city of Karlsruhe had hardly
begun its hearing on the Lisbon Treaty when a higher power -- the
European Court of Justice -- intervened. The Luxembourg-based rival
court's demonstration that there are no limits to the Eurocrats'
claim to power -- was spread by whispers through the German courtroom.
The European judges had just given their blessing to the enactment of
an EU guideline. It relates to new data storage rules, which now
require that telecommunications companies throughout Europe keep
telephone and Internet usage data on file for six months to make it
available for criminal prosecutions. The question was: Does such a
far-reaching measure need to be approved by all member states for it
to come into effect?
The answer from Luxembourg was no. The court's reasoning seemed
bizarre. The judges argued that the issue of data storage is less
pertinent to fighting terrorism than to the European single market.
And a simple majority -- rather than the unanimous vote which would
have been required if the measure had fallen under the EU's crime and
judicial affairs pillar -- is sufficient to rule on questions
relating to the single market.
.It's a cunning line of argumentation which effectively allows the
court to intervene in many different political spheres within member
countries.
The Karlsruhe judges were visibly indignant when discussing
precautions designed to impose limits on such trickery in the future.
It's true that, after the end of the hearings, the indications were
that the court will not declare the Lisbon Treaty unconstitutional.
But the German constitutional judges will probably call for
significant changes to German parliamentary law so that the reform
treaty can come into force.
The treaty, with its jumble of confusing clauses and cross-
references, contains new, sweeping authority that would give Brussels
new jurisdiction at the expense of national parliaments. The "power
of disposal over primary law" that the treaty would grant the EU's
bodies could also be described as the EU's "jurisdiction over
jurisdictions," argued Udo Di Fabio, the judge charged with drawing
up the ruling. This would amount to a kind of "self-service"
mechanism by which the EU could expand its own powers without
recourse to new treaties. Such a mechanism would be difficult to
reconcile with the provisions of the German constitution.
Here is an example of how the treaty would encroach on national
authority: Under the Lisbon Treaty, the EU can define certain
criminal cases, such as those involving terrorism, human trafficking
or cyber crime, as "transnational." But, "depending on developments
in criminality," the Council can expand the EU's jurisdiction to any
other aspects of criminal law as soon as there is a possibility that
they will become transnational -- in other words, virtually always.
The potential conflicts are foreseeable. For instance, it would be
difficult to persuade the Dutch that assisted suicide should be a
crime. It would be just as hard to convince the Germans that hashish
should be decriminalized.
The judges on Germany's Constitutional Court were troubled by such
provisions. Judge Herbert Landau pointed out that decisions involving
the application of criminal law to "moral and ethical value
judgments" would have to be "debated by German lawmakers."
This is precisely where the judges on the Constitutional Court will
probably focus their efforts, in order to come to grips with the
dangers of the Lisbon Treaty at the national level. They could
require the German parliament, the Bundestag, to incorporate a kind
of "emergency brake" into the Brussels mechanism.
This would be possible, technically speaking, because governments can
only approve expansions of powers at the European level by unanimous
vote. In other words, the consent of the federal government would
have to be firmly tied to that of the Bundestag.
This sort of veto could prevent representatives of the federal
government from relinquishing powers too hastily. The Constitutional
Court is concerned about how international bodies like the World
Trade Organization (WTO) will treat German special interests in the
future. What happens if, as the Lisbon Treaty provides, one high-
handed member decides to speak for all 27 EU countries?
Because "the music of globalization is playing" at the WTO, the
judges argue, the issue of who has the say there cannot be
irrelevant. They fear that even the German water supply could be sold
off one day in what Di Fabio calls the WTO's "bazaar atmosphere."
A veto, however, is only useful with those decisions that must be
made unanimously. But all areas of domestic and legal policy where
competency is transferred to the European bodies under the Lisbon
Treaty would be exempt from the unanimity requirement. Even worse,
the European Council can also decide to apply the majority vote
principle to decisions that would normally require a unanimous vote.
If that happens, Germany could simply be overruled, such as on the
question of joint military operations abroad. The only safeguard is
that the decision on which mode of voting to apply -- a majority or
unanimous vote -- must be unanimous.
But, the judges asked astutely, does the confusing treaty also make
it possible to simply do away with the unanimity requirement when it
comes to expanding the EU's competencies?
The court heard arguments by one of the most fervent advocates of
European rights, Berlin Professor Ingolf Pernice. His response, after
lengthy deliberation: No, but "in an emergency" things would probably
be different. [There's the Delphic Oracle for you -cs]
---------------------------------------------------------------------
Translated from the German by Christopher Sultan
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