Federal Constitutional Court Undermines German EU Presidency
By Dr. Andreas Maurer and Daniela Schwarzer

For the German EU presidency next year, the federal government has a clear goal: preserve the political substance of the European Constitutional Treaty. Until a couple of days ago, the ideal solution was to get the treaty as a whole back on track for ratification.

However, a wrench has been thrown into the works by Karlsruhe, seat of the German Federal Constitutional Court, and the previous strategy has been devastated. The Court froze the proceedings on the constitutional complaint by Peter Gauweiler, a Member of Parliament for the Christian Social Union (CSU) against the law confirming the German support of the European Constitutional Treaty. Siegfried Broß, the judge responsible for the matter, who has held views critical of the EU in the past, explained in his judicial opinion that in face of the ongoing debate about the continuation of the European constitutional process after the failed referenda in France and the Netherlands, he doesn't regard reviewing Gauweiler's complaint to be a priority. At this point of time, a decision could get the court involved in actively shaping the European constitutional process, he explained.

Exactly the opposite is true. With this opinion the highest court takes a clear position in the raging debate.  It deprives the ratification process of political credibility, even though the legal issue is unambiguous: by signing the constitution, the heads of state have committed themselves to a ratification attempt - even in case ratification fails in the course of this process in one or more states. That's why Estonia, Cyprus, and Malta ratified the treaty even after the "no" votes in the summer of 2005. In spite of that, Judge Broß obviously thinks it more likely that not all EU countries will comply with their ratification commitments.

This assessment might be correct politically. On the one hand, Finland will ratify the treaty before the end of the year, and with Bulgaria and Romania becoming EU-members in 2007 the countries having ratified the treaty will rise to seventeen. On the other hand, it has become apparent over the last couple of months that the ratification of an unchanged or amended treaty is unlikely to find unanimous approval. However, such a conclusion does not fall to an official of the Federal Constitutional Court, but to the Council of the European Union. The German EU presidency has a key role in this process because it was commissioned in June 2006 to present a report at the end of its term of its EU presidency on what to do with the treaty.

The interim verdict from Karlsruhe, however, has considerably limited Berlin's political leeway and is causing a destructive exposure of the federal government's strategy. Due to Broß' taking the side of German President Köhler, who has so far refused to sign the treaty precisely because of the impending constitutional complaint, the final ratification of the treaty will have to be postponed for the time being. The political weight of ratification through the Bundestag and the Bundesrat, that caused Germany to be counted among the group of "friends of the constitutional treaty," is thus invalidated.

The Federal Republic can no longer count itself among the countries which will unconditionally back the new and urgently needed EU treaty. This will strengthen countries like Great Britain, Poland and the Czech Republic, which have been able to lean back since the failed referenda and watch how the treaty is losing political momentum and substance month after month.

A likely scenario is now that the route to a "mini-treaty" will be outlined under the German presidency. Its content so far is being defined very differently in European capitals. Berlin wants to preserve the institutional reforms, including its procedural ratification rules, as the treaty's "substance." Several other countries though regard this as a chance to implement a reform of only the EU commission - which is due in 2009 in any case - and maybe add one or two additional institutional innovations. This "micro-treaty" would not, however, address the apparent shortcomings in other EU institutions. It would lack important improvements that range from a more efficient foreign policy apparatus and a democratization of the EU to new regulations for qualified majority voting and the reform of the European financial constitution.

The result of an implementation that is so fragmented, unsystematic and uncontrolled would not only be a loss of efficiency and transparency within the EU - and thereby a loss in legitimacy of decision making and decision makers - but an EU-27 without reformed institutions and procedures would also be badly prepared for further enlargement in the future. Thus, political facts that would have deserved a broad public discussion are established through back door channels. What's worse is that the decision makers in Europe's capitals are thereby evading political responsibility by failing to answer the key question of which shape Europe should take not only as a community but also as a geostrategic project.

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Dr. Andreas Maurer and Daniela Schwarzer are experts on Europe at the German Institute for International and Security Affairs (Stiftung Wissenschaft und Politik Berlin).

Ms. Schwarzer was also a co-author of the recent AICGS publication, "Industrial Lobbying within the European Union: Actors, Strategies, and Trends in the Multi-Level System," AICGS Policy Report # 24 (requires Adobe Acrobat).

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This article originally appeared in the November 3, 2006, Financial Times Deutschland. It also appeared in the November 10, 2006, AICGS Advisor.

This version was translated by Christoph Heilmeier for AICGS.  For the original German version, please click here.