IMI-Analysis 2009/031en
Verdict of the German Constitutional Court concerning the Lisbon Treaty:
Court strenghtens Parliamentery Prerogative
But the Lisbon Treaty was made compliant with the constitution ? now the
Irish referendum is decisive
by Tobias Pflüger
On June 30 the German Constitutional Court decided in an exciting verdict
whether the Lisbon Treaty is unconstitutional. But the court used a trick by
declaring the treaty per se as constitutionally compliant, but at the same
time declaring that part of the accompanying legislation as
unconstitutional, which was used by the Bundestag (lower house) and
Bundesrat (upper house) to ratify the treaty: ?The law about the extension
and strengthening the rights of the Bundestag and Bundesrat regarding the
affairs of the European Union (extension law) is violating article 38 (1) as
related to article 23 (1) of the constitution insofar as the participatory
rights of the German Bundestag and Bundesrat have not sufficiently been
developed."
This pertains to a number of points in the Lisbon Treaty for which the
Federal Constitutional Court claims that the Bundestag and Bundesrat tried
to disempower themselves. An important aspect is the decision-making process
regarding military deployments of the European Union.
In the verdict it says that the appeal of the petitioners is justified in
this regard as far as the applicant claims a violation of the
decision-making power of the German Bundestag concerning the deployment of
German military forces. And a similarly distinct borderline is drawn by the
constitution concerning decisions about the deployment of the federal army.
Except for the state of defence, a deployment abroad is only allowed within
the system of mutual collective security (article 24 [2] of the
constitution), while the concrete deployment constitutionally requires the
approval by the Bundestag. The federal army is a Parliamentary Army, and
therefore the representative organ of the people has to decide about its
use."
The Lisbon Treaty creates vast new military competence for the EU. This is
unfortunately confirmed by the Federal Constitutional Court in its verdict.
But fortunately the Federal Constitutional Court has corrested the fact that
the German Bundestag had disempowered itself by its approval of the Lisbon
Treaty.
The judges clarified: only the German Bundestag is empowered to decide about
foreign military deployment of the federal army. According to the Federal
Constitutional Court, the disempowerment of the Bundestag concerning
decisions about military deployments of the EU as it is stipulated by the
Lisbon Treaty and the German accompanying legislation is unconstitutional.
One of the questions was, who is going to decide whether the german federal
army will participate in a military operation of the EU. The judges of the
Constitutional Court have now clarified that this is the exclusive authority
of the Bundestag.
The verdict says: ?In this case (the decision about a military deployment by
the European Council, T.P.) the German representative in the council would
be constitutionally obliged to refuse his approval of any proposed
resolution which would violate or circumvent the constitutional prerogative
of the parliament concerning military issues.
This statement of the verdict becomes particularly interesting with regard
to the Permanent Structured Cooperation according to Protocol No. 10 of the
Lisbon Treaty. The protocoll calls for the military deployment of EU Battle
Groups? within five to 30 days. However, after the verdict of Karlsruhe
(seat of the German Federal Constitutional Court, translators note), a
German participation in such rapid deployment will be practically
impossible, because it would be necessary for the Bundestag to convene every
time prior to the European Council decision about the deployment of EU
Battle Groups with German participation. The Bundestag would first have to
take a decision about the foreign mission of German soldiers. The
constitutional verdict is a kind of parliamentary shackle for the Battle
Groups.
The Bundestag will have to pass a new accompanying law for the Lisbon Treaty
in two extraordinary sessions scheduled for 26 August and 08 September - the
middle of the parliamentary summer break and the ongoing federal elections
campaign. It is still unclear how the Bundestag will participate in the
decision making about rapid reactionmissions of the EU. In practice e.g.
last year's war in Georgia, convening the Bundestag on such a short notice
is highly unrealistic. It might well be that the function of the Battle
Groups as rapid intervention troops will be jeopardised or even paralysed by
this procedure. Even the proposed solution of Christian Schmidt, the
Parliamentary State Secretary to the Federal Minister of Defence, to solve
the constitutional conflict by issuing a permanent (parliamentary) approval
for the deployment of EU battle groups is incompatible with the verdict of
the Constitutional Court.
Ireland second round an further tricks
However, the Lisbon Treaty is not prevented by this verdict in Germany.
Therefore, everything is now depending on Ireland, where a new referendum
will be held on October 2nd , because in the past the Irish people were so
recalcitrant to clearly say No to the treaty. At the EU summit in June, a
declaration calling for an additional protocol in a future treaty was
passed. To become effective, this declaration has to be ratified by all EU
member states. It is planned that the EU member states will sign this
declaration e.g. on the occasion of Croatia's accession to the EU with
subsequent ratification by the national parliaments. This declaration
contains three items: Fiscal policy, legislation on abortion and military
policy. The goal is to pacify at least some of those who voted against the
Lisbon Treaty in the past, hoping to gain a majority for a Yes during the
second referendum on the Lisbon Treaty in Ireland on October 2nd .
Of particular interest is the section about Security and Defence. It is
alleged that Ireland's neutrality will not be affected. But this is not
correct: The collaboration between the EU and the NATO remains a significant
element of the Lisbon Treaty. A number of affirmative references are made
regarding NATO. Protocol No. 10 states: "CONVINCED that a more assertive
Union role in security and defence matters will contribute to the vitality
of a renewed Atlantic Alliance, in accordance with the Berlin Plus
arrangements" This is an open violation of the Irish neutrality.
The additional protocol will not change the fact that the Lisbon Treaty
would convert the EU into a military union. All military elements of the
treaty are going to persist: the military solidarity clause (article 222) -
more rigid than the solidarity clause of the NATO - converts the EU into a
military alliance and enables the use of military forces inside the EU.
Article 42 obliges the member states to a build-up of arms. The Permanent
Structured Cooperation makes a militarized Core Europe possible: Only those
countries will decide about military deployments which participate in them.
For the first time the EU budget can be used for military purposes using the
Start-up Fund. Until now this is prohibited by the EU treaties. For the
first time, the Lisbon Treaty would anchor EU Battle Groups and the Armament
Agency by primary law, i.e. to abolish them again, a new EU treaty would be
necessary.
The so called additional protocol affirms the correctness of our critique of
the military consequences of the Lisbon Treaty. Now, using trickery, it is
intended to finally push through the Lisbon Treaty. The Irish people voted
with a clear No in 2008. Now they are supposed to vote time and again until
self-proclaimed EU elite is satisfied with the the result . The concessions
of the new additional protocol are cosmetics without any obligation.
Representatives of the progressive Irish No-campaign have asked to make use
of the second referendum on the Lisbon Treaty in Ireland as quasi an EU-wide
ballot. They asked for support from progressive NO-activists of other EU
countries. We will comply with this request. We will struggle for a victory
of the NO to this neoliberal and militaristic Lisbon Treaty during the
second referendum in Ireland too. No means No!
Tobias Pflueger
Informationsstelle Militarisierung (IMI) e.V.
http://www.imi-online.de
