Verdict of the German Constitutional Court concerning the Lisbon Treaty: Court strengthens Parliamentary Prerogative

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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 theIrish referendum is decisive

by Tobias Pflüger

On June 30 the German Constitutional Court decided in an exciting verdictwhether the Lisbon Treaty is unconstitutional. But the court used a trick bydeclaring the treaty per se as constitutionally compliant, but at the sametime declaring that part of the accompanying legislation asunconstitutional, which was used by the Bundestag (lower house) andBundesrat (upper house) to ratify the treaty: ?The law about the extensionand strengthening the rights of the Bundestag and Bundesrat regarding theaffairs of the European Union (extension law) is violating article 38 (1) asrelated to article 23 (1) of the constitution insofar as the participatoryrights of the German Bundestag and Bundesrat have not sufficiently beendeveloped."

This pertains to a number of points in the Lisbon Treaty for which theFederal Constitutional Court claims that the Bundestag and Bundesrat triedto disempower themselves. An important aspect is the decision-making processregarding military deployments of the European Union.

In the verdict it says that the appeal of the petitioners is justified inthis regard as far as the applicant claims a violation of thedecision-making power of the German Bundestag concerning the deployment ofGerman military forces. And a similarly distinct borderline is drawn by theconstitution concerning decisions about the deployment of the federal army.Except for the state of defence, a deployment abroad is only allowed withinthe system of mutual collective security (article 24 [2] of theconstitution), while the concrete deployment constitutionally requires theapproval by the Bundestag. The federal army is a Parliamentary Army, andtherefore the representative organ of the people has to decide about itsuse."

The Lisbon Treaty creates vast new military competence for the EU. This isunfortunately confirmed by the Federal Constitutional Court in its verdict.But fortunately the Federal Constitutional Court has corrested the fact thatthe German Bundestag had disempowered itself by its approval of the LisbonTreaty.

The judges clarified: only the German Bundestag is empowered to decide aboutforeign military deployment of the federal army. According to the FederalConstitutional Court, the disempowerment of the Bundestag concerningdecisions about military deployments of the EU as it is stipulated by theLisbon Treaty and the German accompanying legislation is unconstitutional.

One of the questions was, who is going to decide whether the german federalarmy will participate in a military operation of the EU. The judges of theConstitutional Court have now clarified that this is the exclusive authorityof the Bundestag.

The verdict says: ?In this case (the decision about a military deployment bythe European Council, T.P.) the German representative in the council wouldbe constitutionally obliged to refuse his approval of any proposedresolution which would violate or circumvent the constitutional prerogativeof the parliament concerning military issues.

This statement of the verdict becomes particularly interesting with regardto the Permanent Structured Cooperation according to Protocol No. 10 of theLisbon Treaty. The protocoll calls for the military deployment of EU BattleGroups? within five to 30 days. However, after the verdict of Karlsruhe(seat of the German Federal Constitutional Court, translators note), aGerman participation in such rapid deployment will be practicallyimpossible, because it would be necessary for the Bundestag to convene everytime prior to the European Council decision about the deployment of EUBattle Groups with German participation. The Bundestag would first have totake a decision about the foreign mission of German soldiers. Theconstitutional verdict is a kind of parliamentary shackle for the BattleGroups.

The Bundestag will have to pass a new accompanying law for the Lisbon Treatyin two extraordinary sessions scheduled for 26 August and 08 September - themiddle of the parliamentary summer break and the ongoing federal electionscampaign. It is still unclear how the Bundestag will participate in thedecision making about rapid reactionmissions of the EU. In practice e.g.last year's war in Georgia, convening the Bundestag on such a short noticeis highly unrealistic. It might well be that the function of the BattleGroups as rapid intervention troops will be jeopardised or even paralysed bythis procedure. Even the proposed solution of Christian Schmidt, theParliamentary State Secretary to the Federal Minister of Defence, to solvethe constitutional conflict by issuing a permanent (parliamentary) approvalfor the deployment of EU battle groups is incompatible with the verdict ofthe 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 referendumwill be held on October 2nd , because in the past the Irish people were sorecalcitrant to clearly say No to the treaty. At the EU summit in June, adeclaration calling for an additional protocol in a future treaty waspassed. To become effective, this declaration has to be ratified by all EUmember states. It is planned that the EU member states will sign thisdeclaration e.g. on the occasion of Croatia's accession to the EU withsubsequent ratification by the national parliaments. This declarationcontains three items: Fiscal policy, legislation on abortion and militarypolicy. The goal is to pacify at least some of those who voted against theLisbon Treaty in the past, hoping to gain a majority for a Yes during thesecond referendum on the Lisbon Treaty in Ireland on October 2nd .

Of particular interest is the section about Security and Defence. It isalleged that Ireland's neutrality will not be affected. But this is notcorrect: The collaboration between the EU and the NATO remains a significantelement of the Lisbon Treaty. A number of affirmative references are maderegarding NATO. Protocol No. 10 states: "CONVINCED that a more assertiveUnion role in security and defence matters will contribute to the vitalityof a renewed Atlantic Alliance, in accordance with the Berlin Plusarrangements" This is an open violation of the Irish neutrality.

The additional protocol will not change the fact that the Lisbon Treatywould convert the EU into a military union. All military elements of thetreaty are going to persist: the military solidarity clause (article 222) -more rigid than the solidarity clause of the NATO - converts the EU into amilitary alliance and enables the use of military forces inside the EU.Article 42 obliges the member states to a build-up of arms. The PermanentStructured Cooperation makes a militarized Core Europe possible: Only thosecountries will decide about military deployments which participate in them.For the first time the EU budget can be used for military purposes using theStart-up Fund. Until now this is prohibited by the EU treaties. For thefirst time, the Lisbon Treaty would anchor EU Battle Groups and the ArmamentAgency by primary law, i.e. to abolish them again, a new EU treaty would benecessary.

The so called additional protocol affirms the correctness of our critique ofthe military consequences of the Lisbon Treaty. Now, using trickery, it isintended to finally push through the Lisbon Treaty. The Irish people votedwith 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 concessionsof the new additional protocol are cosmetics without any obligation.

Representatives of the progressive Irish No-campaign have asked to make useof the second referendum on the Lisbon Treaty in Ireland as quasi an EU-wideballot. They asked for support from progressive NO-activists of other EUcountries. We will comply with this request. We will struggle for a victoryof the NO to this neoliberal and militaristic Lisbon Treaty during thesecond referendum in Ireland too. No means No!

Tobias Pflueger

Informationsstelle Militarisierung (IMI) e.V.

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