Download The Bundesverfassungsgericht sentence

The Bundesverfassungsgericht sentence
and the future of the European Union
After the French “no” to the project of a European Constitution the German answer could not be
missing. France availed itself of its veto right. Now, the insurmountable limits of the building of
Europe fixed in the German Constitution have been made explicit by Germany. It is a preventive
veto right. After the Bundesverfassungsgericht sentence of June 30th, the former constitutional judge
Paul Kirchof, declared: “There cannot be a European state while the German constitution continues
to exist”. It is a serious statement, which denies the foundations of the European construction.
Taken literally, it implies the intention of Germany to do without a European foreign and security
policy, the only “sovereign power” still on the brink between the Union and the member states. Is
Germany maybe thinking of a new Sonderweg in world politics?
In order to discuss these complex issues, first of all we will examine the ideological nucleus on
which the German judges have built their reasoning. Then, we will criticise the concept of national
sovereignty and, finally, we will take into account the political consequences of the ideological
nucleus of the Bundesverfassungsgericht.
The sentence of the German constitutional judges is founded on a precise and well reasoned
ideological nucleus. Substantially it is the umpteenth reformulation of the doctrine of national
sovereignty, which in the contemporary world must be founded explicitly on popular will and
democracy. The fundamental element of the democratic state, according to the German
Constitutional Court, consists in the recognition of the right of citizens to determine, with a free and
equal vote, the formation of public powers, in other words their government. It must be based on a
proportional majority of the population, whereas the task of the minority is to represent the political
alternative (§ 211, 212, 213, 214, 215). The German Constitution, thanks to representative
institutions, guarantees this result by means of laws that must be considered “inviolable”.
According to the judges, the Germans’ constitutional power, which gave life to the Constitution,
established that these fundamental laws – German “inalienable constitutional identity” – cannot be
modified in any way in the future. It is an “eternity guarantee”. The German Constitutional Court
has taken on the role of loyal guardian of German constitutional identity (§ 216, 217, 218, 219).
From these premises, at first sight irreproachable, the German judges severely criticise the
institutions of the European Union, which is designated as a Staatenverbund, that is an association
of states which remain sovereign. The judges realise that the Basic Law foresees the integration of
Germany into European and world institutions, in order to guarantee a future of peace and
prosperity for its citizens. Nonetheless, “neither the integration pari passu into the European Union
nor the integration into peacekeeping systems such as the United Nations is tantamount to
submission to alien powers” (§ 220). In particular, as far as Europe is concerned, they acknowledge
that the Basic Law recognises the chance of a “far-reaching transfer of sovereign power to the
European Union” (§ 226), but this transfer of powers must come to a halt before a well defined
limit, because “the Basic Law does not grant the bodies acting on behalf of German powers to
abandon the right to self-determination of the German people in the form of Germany’s sovereignty
under International law by joining a federal state. Due to the irrevocable transfer of sovereignty to a
new subject of legitimisation that goes with it, this step is reserved to the directly declared will of
the German people alone” (§ 228). Moreover, the Constitutional Court makes it clear that, as the
guardian of German constitutional identity, it would object to this step, because it would mean
going from a European Union conceived of as a Staatenverbund, in which national governments
continue to be the Masters of the Treaties, to a federal state entity, by means of an irreversible
transfer of sovereignty. In this case, the exit of Germany from the Staatenverbund would be
inevitable (§ 230, 231, 232, 233, 234, 235 e 264).
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This theoretical construction is open to easy criticism. Among its organs, the European Union
envisages a European Parliament elected directly by the citizens; therefore the existence of a
sovereign European people should be acknowledged alongside the national people. The German
constitutional judges have, however, their own peculiar concept of the functioning of the Union:
“the Council is not a second chamber as it would be in a federal state but the representative body of
the Masters of the Treaties”; the Commission “need not extensively fulfil the conditions of a
government that is fully accountable either to Parliament or the majority decision of the electorate”
and the European Parliament is only “an additional independent source of democratic
legitimisation” (§ 271). Substantially, the European Parliament does not express full democratic
legitimacy at the same level of national parliaments. “The Treaty of Lisbon has also decided against
the concept of a European federal Constitution in which a European Parliament as the body of
representation of a new federal people that would be constituted by this Constitution would be the
focus” (§ 277). Therefore the European Union continues to remain “the creation of sovereign
democratic states” (§ 278) and cannot in any way be considered a federal state because within it
“the will of the European majority [that] brings about the formation of the government” in such a
way that they will accomplish “genuine competition between government and opposition clearly
visible to the citizens” cannot be expressed (§ 280). This dialectics between the majority and the
opposition could not however appear in the present European Parliament because the European
Members of Parliament are elected according to a digressive criterion, on the basis of which the
citizens of the smaller countries are more represented compared to the bigger ones. “The result of
this is that the weight of the vote of a citizen from a Member State with a low number of inhabitants
may be about twelve times the weight of vote of a citizen from a Member State with a high number
of inhabitants (§ 285). A majority of Members of Parliament in the European Parliament does not
necessarily correspond to a majority of European voters. To sum up, “it is not the European people
that is represented according to the meaning of Article 10.1 TEU Lisbon but the peoples of Europe
organised in their states” (§ 286); the Treaty of Lisbon “does not lead to a new level of development
of democracy” (§ 295), the principles of which are well rooted in the national sovereign States.
Let us now consider the limits of this definition of national sovereignty. National sovereignty is not
only a legal concept, but also a political myth which served and serves to justify national power, its
existence and its expansion, up to the manifestation of a will for power which generated the greatest
tragedies of history: the two world wars in the twentieth century. The reformulation of the doctrine
of national sovereignty by the German judges is apparently cautious and founded on solid
democratic roots of popular will. Nevertheless, it suggests the creation of a myth that could become
a political monster. The myth is generated by a vision of history that omits some fundamental
features of reality, to exalt others, which are imaginary, with the aim of making an obscure situation
comprehensible or of justifying a power; in this case national power. The post-war German State,
rebuilt on the ashes of the defeated Hitlerian State, did not arise due to the self-determination of the
German people, but thanks to the victorious great powers, first of all the USA and the USSR, who
lay the ideological and institutional foundations of the new post-war international relations, divided
Europe into two separate domains and split the old Reich into two states. In 1958 the historian Golo
Mann wrote, without being contradicted, that “the two principles, democracy and federalism, were
imposed on the Germans by the winners, as the winners imposed the monarchy on France after the
fall of Napoleon”. To put it less bluntly, the constitutionalist Carl Friedrich (in 1950) gave a
convincing explanation for the substantial uniformity of all the European constitutions after the war
as far as their internal democratic structure is concerned and their opening to peace-making and to
the devolution of national sovereignty to supranational institutions. According to Friedrich, the
constitutions are the result of revolutions, as European and American history of the Enlightenment
period shows. In post-war Europe the will for renewal was manifested, however, by means of a set
of “negative revolutions motivated not so much by any positive enthusiasm for a presumably
splendid future as by a negative distaste for a sordid past”. The concept of “negative revolutions”
not only explains the democratic contents of the German and Italian Constitutions, the two defeated
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countries, but also those of France and of other European countries.
Therefore, one must acknowledge that the post war international order was built thanks to the will
of the winning powers, on the basis of the principle of national sovereignty, mitigated by the spirit
of pacific cooperation represented by the United Nations. Even Germany, like all the other
European States, could consider itself a sovereign state. But it was a purely formal sovereignty,
without substance. One must not forget that Germany in the immediate post war period did not have
a currency, nor an army, nor the control of Ruhr. In 1951, it was only thanks to the European
Payments Union that Germany managed to overcome a serious economic crisis and it was only
thanks to the creation of the European Community that the so called Wirtschaftswunder happened;
an economic miracle which should be considered European and not national. Nonetheless, despite
the legal terminology of the nineteenth century with which we continue to judge the political
situation, Germany (like all the other European states) cannot consider itself a sovereign state, if by
sovereign we mean a state that has the necessary and sufficient powers to guarantee full
independence to its citizens. The German mark was considered a strong currency, but it was so only
because Germany could enjoy the advantages of European integration. Furthermore, Germany
never had an independent defence, but only troupes within a military alliance, NATO, governed by
the United States. When the German judges set themselves as champions of German sovereignty –
the constitutional identity – what do they intend to defend?
Free from the ideological prejudice of national sovereignty, the German constitutional judges could
have appreciated the innovative features of European democracy in construction. The pure
proportional representation, with which they expect to judge the democratic legitimacy of the
political institutions, is only a technique used in some democratic states to achieve the objective of a
representative government. Other systems consider stability just as important. For this reason the
electoral systems of the USA and Great Britain use the electoral technique of “first-past-the-post”.
It is well-known that, in these cases, a parliamentary majority which does not correspond to the
majority of the voters may occur, and it has actually occurred. But since, by means of this electoral
system, stable majorities of government can be guaranteed, English and American citizens are
prepared to accept deviations from the principle of pure proportionality. In any case, it is true that in
the case of the representation of “national” people there is a tendency to prefer the application of the
proportional principle. Nevertheless, the European problem is different. In the European Union the
problem consists in the construction of a “supranational democracy”, in which national people can
participate in the formation of laws on an equal basis not only of citizens, but of national peoples. In
federal systems this issue can be solved through bicameralism, with a chamber in which national
peoples are represented and a chamber in which the citizens of the Union are represented, as a
people of the European nations. The European Union is facing this challenge – which has never
been dealt with by the existing federations, since they are all the expression of national people – by
means of innovative solutions, which reconcile representative democracy with the defence of
national identity. From this perspective, the European Parliament has accepted to mitigate pure
proportionality, through the principle of digressive representation, in which the more populated
national states accept the fact that even the smaller states can have a proportionally bigger number
of members of Parliament, so that even the small countries can send representatives of all the
internal political families to the European Parliament. On the other hand, even the Council of
Ministers, in which the national states are represented, have mitigated the internationalist principle
“one state, one vote”, accepting a “democratic” proportional amendment, with the criterion of
decisions founded on the dual majority of the states and people. The Council of Ministers, contrary
to what the German judges claim, has now become a second chamber of the Union at least as far as
the approval of European legislation is concerned which takes place on the basis of “co-decision”
between the Parliament and the Council. It can therefore be stated that the European Union is
actually implementing a new type of democracy, a “supranational democracy” – this is as a matter
of fact how the European Parliament has defined it – or, better, a federal democracy, thanks to
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which all citizens and all national people of the Union can contribute, freely and equally, to the
formation of a European political will.
We must now consider the second issue, that of the possible political consequences of the doctrine
devised in the ideological nucleus previously illustrated. It is a doctrine that signals a turning point
in the history of European integration. The first European Community, the ECSC, was built as a
first step towards a European Federation, as is stated in the Schuman Declaration. Nonetheless, the
final objective of a Federation has been pursued using the method of economic integration which, in
time, has made it inconceivable, and therefore impossible, for a new war among the countries of the
European Union. Today, we can therefore state that the European Union is a “de facto federation”,
if the essence of a federation consists in the member states renouncing war as a means for the
solution of their controversies. However, from the Schuman Declaration until the present, a lot of
water has flowed beneath the bridge: the Berlin Wall fell, the Cold War is over and the European
Union has been enlarged to 27 countries. Moreover, no politician at the top of national politics,
today, has directly experienced the tragedy of the Second World War. For the new generations, the
problem of the pacification of Europe no longer represents the primary moral motivation for
European construction. The European Union has to face new problems, such as economic
globalisation, the international financial crisis, the threat of a planetary ecological crisis and
international security, in an increasingly multipolar situation, with a declining role of the United
States as a hegemonic power. After the failure of the project for a European Constitution, it is
therefore understandable how in the Lisbon Treaty rules and principles have appeared allowing the
German judges – and before them a great number of “realistic” academics, like Milward and
Moravsic – to devise and make credible, for the European Union, the ambiguous concept of
Staatenverbund, in other words a Union of national sovereign states. It is such a vague notion that it
can be used to evaluate situations which are very different from the European Union, such as for
example the League of Nations. It can, for instance, be claimed that the United States of America
are a Union of sovereign States – the fifty member states which maintain all the “sovereign” powers
that have not been given to the federal government – plus a federal government. It can just as well
be said that the European Union is a Union of sovereign States plus a system of confused and not
very democratic governance. Nonetheless, the substantial issue is not terminological. We must ask
ourselves: what manoeuvring margins do European politicians want to exploit with this ambiguous
notion? Is it really possible that Germany (or another important country like France) could leave the
European Union? And with what consequences?
In order to answer these questions, we can recall an important historical precedent: the doctrine of
the “states’ rights” devised by John Calhoun, in the first half of the Nineteenth Century, in an
American Federation still uncertain between union and division. The debate originally arose
concerning the imposition of the protective duties to favour industrial development. These duties
were favoured by the North, but opposed by the South. Calhoun asserted that the federal
constitutional pact consisted in the voluntary giving up of powers of the member states – which
remained sovereign – to the federal government. The federal government could not exert powers of
the citizens of the Union that were not expressly provided for in the original pact. Each state could
therefore, on the basis of its constitutional and political system, decide unilaterally to nullify federal
legislation if the subject in question was controversial, something the South Carolina Convention
actually did in 1832. In response, the federal government threatened the use of military force to
make South Carolina reason. Finally, in 1833, President Jackson suggested a compromise and the
dispute was solved peacefully. However, when in the following years the controversial problem
concerned the abolition of slavery, a compromise between the North and South was not possible
and the United States faced a bloody civil war. Calhoun’s doctrine of the states’ rights and of the
power of nullification of federal laws became the ideological justification of the disintegration of
the American Union.
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The American case is significant even for contemporary Europe. Calhoun’s doctrine and the
tragedy of the American civil war are discussed by Carl Schmitt in Verfassunglehre (1927). Schmitt
rightly observes that in a federation “juridical and political antinomies” may appear and can lead to
its break-up. “It is inadmissible – claims Schmitt – for the global existence of a federation to
eliminate the particular existence of its member states or for the existence of the member states to
eliminate that of the federation”. A conflict concerning sovereignty cannot be solved with a legal
decision. It is an existential issue that first of all must be cut off politically. In essence, juridical and
political antinomy can be overcome only if the member states and the federation agree on shared
rules, which should implement “political homogeneity”, by means of a pact of permanent
renouncement of the use of force and of secession. At this point only it makes sense to assign the
task of solving the controversies between the member states and the federal government to a
juridical organ, the supreme federal court.
Schmitt’s comment is useful to understand the present difficulties of the European Union and the
ways to overcome them. Unlike the United States of America in the first half of the nineteenth
century, today the European Union does not have to face existential issues that could cause a
conflict among the member states or between them and the federal government (which does not yet
exist). It is difficult, if not impossible, for national government to convince European citizens that a
war (for example between France and Germany) is a possible and sensible prospect. The true
existential conflict Schmitt talks about is purely within the European political class and within its
member states, in particular France and Germany. It is these two states which still have to decide
how many powers should be assigned to the European Union to allow it to act, with a democratic
and efficient government, in the world arena. This does not mean that the danger of the
disintegration of the Union can manifest itself in different forms from a war. A Staatenverbund is
an instable political construction. Germany, supported by France, is strongly tempted by the request
of a national participation in the UN Security Council, as an alternative to European Union
participation. France and Germany would like to create a directory (directoire) of strong countries,
to become the spearhead of European foreign policy. It is an illusion. The entrance of Germany in
the Security Council would be an explicit refusal of a common European foreign policy and,
probably, the first step for German nuclear armament. This perspective would generate grudges and
jealousy among the other Union countries. On the contrary, the experience of the single currency
has shown that the German mark could be considered a strong currency in Europe, but that it has
never been so strong as to become a world currency. Today, the euro is a world currency, an
alternative to the dollar. Those who want an independent German foreign policy foster the illusion
of a possible world German policy (a Weltpolitik). But Germany cannot become a global power.
Only the European Union can today have the strength, if united, to speak on the same level with the
great continental powers such as China, India, Brazil, besides the USA and Russia.
To conclude, it is necessary to be grateful to the German judges for having raised with clarity a
crucial problem for the future of the European Union. Their analysis allows the claim that a dual
democratic deficit of the Union exists: a deficit of government responsibility (accountability) and a
deficit of efficacy, when a decision is blocked by veto. The first deficit depends on the fact that the
present powers of the European Union, which are considerable after the creation of the monetary
Union and the approval of the Lisbon Treaty, are not managed by organs that are fully responsible
before the citizens. The German judges’ statement of the lack of a clear relationship between voters,
the European Parliament and a European government is fully justified and shared by the federalists.
The second feature of the democratic deficit concerns, instead, the need to abolish the right of veto
in the Council of Ministers, even as far as foreign policy and security are concerned as well as taxes
which, though modestly (compared to national taxes), must be assigned to the Union to allow it to
face the global economic challenges effectively. It is not true, and the German judges are not right
on this point, that the abolition of the right of veto would jeopardise the identity of European
nations. The German judges cannot accuse the European Union of not being democratic enough
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and, contemporarily, stand up for the veto right in the Council. The political and cultural identity of
European nations in the world of global interdependence will be more guaranteed if European
countries will be able to act united in world politics. After the second world war began the process,
which Friedrich describes as a negative revolution, by means of which the European national people
have conquered new freedoms and new powers through progressive political unification which in
daily routines has created a federal unity in many sectors of public life. Now the time has come to
decide whether this “de facto federal unity” should also become a legal and political unity. The
European Union needs a federal government and a Constitution. The political class and, in
particular, the European citizens should make this decision. The judges, however, can contribute,
with their opinions, to impeding or supporting this choice.
Guido Montani
Vice-President of the UEF
August, 2009
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