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The Federal Constitutional Court, Germany’s equivalent to the U.S. Supreme Court, took on an interesting case last week for two days, debating the constitutionality of the EU’s Lisbon Treaty.
 The Lisbon Treaty is the constitution of the European Union, and in Germany the treaty, set to go into effect in 2010, is in peril. Although ratified by both chambers of parliament, President Horst Koehler withheld full approval, signing the law ratifying the treaty, but not signing the instrument of ratification.
The court case centers on whether the Lisbon Treaty violates the German constitution. On February 10 and 11, arguments were heard in the case, with a verdict expected in late spring.
The case was originally filed by Peter Gauweiler, a member of the German parliament and often described as a maverick, along with several deputies of Die Linke, a leftist political party. Gauweiler says the flexibility clause in the treaty would allow the EU to act in areas not explicitly stated in the treaty. Under the treaty, Germany would be handing over its sovereignty to the EU via the transfer of power, thereby circumventing Germany’s own constitution.
Seven out of the eight justices on the court expressed skepticism about the Lisbon Treaty and four openly questioned whether the EU should be allowed to increase its powers in criminal law, a pivotal issue of the whole affair.
Judge Udo di Fabio, who will deliver the judgement, asked: “Is the idea of going ever more in this direction not a threat to freedom?” Moreover, he indicated that the case could signal "the beginning of the end” for EU law. Judge Herbert Landau noted the treaty would affect German legislative authority. While Judge Rudolf Mellinghoff asked whether the treaty wasn’t already being applied to environmental issues “in an extensive way,” as the European Commission can already penalize companies who pollute the environment, according to EU standards.
Article 146 of the German constitution says a referendum can be called if the order of the country is changed to the detriment of the constitution. So, the high court could call for a referendum, or kill the Lisbon treaty outright.
Even so, the Lisbon Treaty has powerful supporters. Angela Merkel’s government sent two senior ministers to defend it. A month before the court case, Interior Minister Wolfgang Schauble, who personally defended the treaty before the court for the federal government, proclaimed in a transparent effort to influence the court: “I have no doubt that the Lisbon Treaty corresponds completely with the constitution.” Such sentiments may amount to little more than wishful thinking from internationalists.
Foreign Minister Frank-Walter Steinmeier has insisted that the treaty is consistent with basic law in the eyes of the federal government of Germany — he didn’t mention anything about his country’s constitution though — and guarantees the future viability of the European Union, which is likely enough given the calibre of its supporters. Steinmeier stated, “The Treaty of Lisbon strengthens the democratic foundations of the European Union considerably.” He did point out that the treaty would ensure an extension into more policy areas, the clarifying of jurisdictions, establishment of climate protection, provisions for more social policy goals to be reached, strengthening of foreign policy in a more cohesive manner, and increased efficiency. The latter is not likely given the bloated EU bureaucracy, but the rest of the list is standard internationalist propaganda.
But is all this in accord with the German constitution? Is it what the people of Germany want? Certainly the people of Ireland, the Czech Republic, and Poland don’t.
What this does accomplish is infuse more than a little new life into the anti-Lisbon Treaty movement, Libertas. Libertas was founded in Ireland by Declan Ganley to oppose the EU power grab. Libertas is now moving toward becoming a pan-European political party that will be the engine for putting forward candidates across Europe in time for the June elections, providing an alternative to the no-debate, it’s a done deal, business as usual crowd of liberal candidates.
Ganley views what’s happening in Germany as fertile ground for making inroads against what he terms “the anti-democratic disposition of the current EU institutions.” He noted that Germany has the most seats in the EU parliament without having one single party even raise a question about the EU’s intentions, and yet the majority of German citizens are still worried about the direction being taken.
Ganley has noted that he has been encouraged by the positive response to Libertas at the grass-roots level across all of Europe. With enough good luck, perhaps the internationalist program can yet be stopped in Europe.
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