3:33, 14 August 2009
In the Treaty on European Union:
Preamble:
„DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law”
[…]
“CONFIRMING their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law”.
Article 2
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
Article 21
1. The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.
2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: [...]
(b) consolidate and support democracy, the rule of law, human rights and the principles of international law.
In the Treaty on the Functioning of the European Union:
Article 263 (Article 230 TEC)
“[The Court of Justice of the European Union] shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers”.
● What does the Treaty of Lisbon change in the existing treaty system?
- It dissolves the pillar structure of the EU;
- The EU replaces and succeeds the EC;
- It formally confers legal personality to the EU;
- The EC Treaty is renamed Treaty on the Functioning of the European Union;
- The EAEC is removed from the EU and it continues to exist as an independent international organization;
- The Charter of Fundamental Rights of the European Union, albeit in separate document, shall have the same legal value as the Treaties;
- The EU accedes to the European Convention on Human Rights;
- It reforms the mechanisms of contribution by the national Parliaments to the good functioning of the EU;
-It reforms the EU institutions and their proceedings (cooperation proceedings abolished, etc.);
- It changes the EP’s role in the conclusion of EU international agreements;
- It changes the composition of the EP;
- The allocation of seats in the EP shall be determined by secondary law;
- It adds the European Council to the list of EU institutions;
- It introduces the office of the President of the European Council;
- It declares qualified majority voting in the Council the norm;
- Deliberations and voting on draft legislative acts in the Council shall take place in public;
- From 1 Nov. 2014, the Commission shall consist of a number of members corresponding to 2/3 of the number of Member States (unless decided otherwise);
- It distinguishes between legislative acts and non-legislative acts;
- It introduces the office of the “High Representative of the EU for Foreign Affairs and Security Policy”;
- The Court of Justice of the EC is renamed: „Court of Justice of the European Union“;
- It changes the Court’s jurisdiction and modifies the types of bringing action;
- It amends the treaty amendment procedures;
- It introduces the right for each Member State to withdraw from the EU;
- Categorized and classified EU’s competences;
- It establishes additional competences of the EU;
- It extends the content of existing competences of the EU;
- It supranationalizes areas which have been subject to intergovernmental cooperation;
- The exercise of the flexibility clause shall be subject to the EP’s consent;
- It makes amendments to the CFSP and EDSP;
- The field of police and judicial cooperation in criminal matters is brought under the heading “Area of Freedom, Security and Justice”;
- The Eurojust competences shall be extended;
- etc. (I shall return and complete the list. Thinking how to systematize the topics so that the readers and myself could benefit also later.)
This list of changes has been composed with the help of the judgment of the Second Senate of theGerman Federal Constitutional Court on the compatibility of the German Act Approving the Treaty of Lisbon (Zustimmungsgesetz zum Vertrag von Lissabon) with the Basic Law from 30 June 2009.
The questions examined in the judgment:
- The Federal Constitutional Court reviews whether legal instruments of the European institutions and bodies, adhering to the principle of subsidiarity under EC and EU law (Article 5.2 ECT; Article 5.1 sentence 2 and 5.3 of the Treaty on EU in the version of the Treaty of Lisbon) keep within the boundaries of the sovereign powers accorded to them by way of conferred power.
- The Federal Constitutional Court also reviews whether the inviolable core content of the constitutional identity of the Basic Law (Article 23.1 sentence 3 in conjunction with Article 79.3) is respected.
The judgment on the rule of law:
Although the complainants asserted inter alia the violation of the principle of the rule of law, the Court regarded the constitutional complaints to that extent inadmissible, as the complainants did not demonstrate a sufficient individual connection, but the Court explained (para. 108) that,
it had set the criteria to the EU’s democratic development under the rule of law in the Maastricht Judgment (BVerfGE 89, 155 et seq).
I n d i r e c t l y, the judgment discusses the rule of law as it explains that the EU is:
… an association of sovereign national states (Staatenverbund), which exercises public authority on the basis of an international treaty (p. 1), but whose fundamental order is subject to the disposal of the Member States alone and in which the peoples of their Member States (understood as the citizens of the states) remain the subjects of democratic legitimization.
Basing on the principle of conferral, an amendment of the law laid down in the Treaties can be brought about without a ratification procedure, a special responsibility is incumbent on the legislative bodies. A law within the meaning of the Basic Law is not required to the extent that special bridging clauses are restricted to areas which are already sufficiently determined by the Treaty of Lisbon.
The Federal Constitutional Court understands that the national constitutional identity and theUnion’s constitutional identity go hand in hand in the European legal area.
The text of the judgment is available at http://www.bundesverfassungsgericht.de/en/index.html
The German Bundestag was inter alia represented by Prof. Dr. Dr. h.c. Ingolf Pernice and the Federal Government by Prof. Dr. Dr. h.c. Christian Tomuschat.
Posts
A useful way of looking at the judgement of the BVerfG may be to examine what the CSU thinks that it means. This is set out in its by now infamous ‘14-Punkte-Papier’.
http://www.euractiv.de/fileadmin/images/CSU-Leitfaden_zu_Europa.pdf
Of particular relevance is the following sentence from paragraph 241 of the judgement. “What is also conceivable, however, is the creation by the legislature of an additional type of proceedings. before the Federal Constitutional Court that is especially tailored to ‘ultra vires’ review and identity review to safeguard the obligation of German bodies not to apply to Germany, in individual cases, legal instruments of the European Union that transgress competences or that violate constitutional identity”.
In other words, not alone is the BVerfG setting itself up for a direct conflict with the ECJ but is inviting the German federal
legislature to establish a procedure to allow this to happen even in respect of cases not yet before it.
This is revolutionary stuff.
(Report comment)
This is a good question!
First, the wording has been used in the headnotes of the judgment.
But my post is really silent on the actual context, which concerns the exercise of powers by the German Constitutional Court. I understand it so that the Federal Constitutional Court confirms its right to control, whether also the German constitutional principles are guaranteed when EU law is applied. The judgment is worth reading.
(Report comment)
Please can you explain this more fully. “The Federal Constitutional Court understands that the national constitutional identity and the Union’s constitutional identity go hand in hand in the European legal area”.