Bringing European Democracy Back In—Or How to Read the German Constitutional Court's Lisbon Treaty Ruling

• Author: Erik Oddvar Eriksen,John Erik Fossum
• Date: 01 March 2011
• Published date: 01 March 2011
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00549.x

eulj_549153..171

Bringing European Democracy Back

In—Or How to Read the German

Constitutional Court’s Lisbon

Treaty Ruling

Erik Oddvar Eriksen and John Erik Fossum*

Abstract: This article critically examines the democratic theory that informs the German

Federal Constitutional Court’s Lisbon Treaty ruling. This is needed because the ruling is

ambiguous with regard to which type of democracy applies to which type of Union. In

order to analyse the ruling we establish three models of what European democracy

possibly can amount to: audit democracy based on the EU as a derivative of the Member

States; a multinational federal state; or a regional cosmopolitan polity? The court’s

depiction of the EU does not fit as well as we would expect when labeled as a derivative

entity due to the important legislative role of the European Parliament. The EU’s legal

supranationalism points in the direction of a federation, but the court’s argumentation

does not lend support to this notion. The court models democracy on a rather specific set

of institutional presuppositions that are derived from the parliamentary model of democ-

racy associated with the sovereign nation state. At the same time, the court operates with

a conception of a changing state sovereignty that unfolds more in line with cosmopolitan

rather than with classical Westphalian statist principles.

Introduction

The European integration process has been rightly cast as ‘integration through law’.

Each major step of integration has been legally encoded, and legal interpretation and

application have furthered the integration process. The process has many sources and

drivers, national no less than European. European integration was authorised through

special provisions in the initial founder states’ national constitutions.1European law’s

legitimacy draws on the common constitutional traditions of the Member States, and

the Member States still consider themselves as ‘masters of the treaties’. Court rulings,

also national constitutional court rulings give a strong steer to the integration process.

* Erik O. Eriksen is Director and Professor of political science at ARENA—Centre for European Studies,

University of Oslo. John Erik Fossum is Professor of political science at ARENA—Centre for European

Studies, University of Oslo.

1F. Schorkopf, refers in the article ‘The European Union as an Association of Sovereign States: Karlsruhe’s

Ruling on the Treaty of Lisbon’, (2009) 8 German Law Journal 1219, to the ‘German constitution, which

from the beginning was distinguished by its “visionary openness towards Europe”...’.

European Law Journal, Vol. 17, No. 2, March 2011, pp. 153–171.

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A national constitutional court may: (a) affirm the integration that has been wrought;

(b) reject it; (c) set limits to further integration; or (d) direct it in a particular way. These

considerations are relevant when considering the German Court’s Lisbon Treaty ruling

because the treaty amends the basic legal framework and operating conditions for the

Union. In this connection, it also matters that the Supreme Court in question was the

German Federal Constitutional Court because Germany is such a central member of

the EU.

The Federal German Constitutional Court (GCC) was asked to consider the effects

of European integration on German constitutional democracy.2This was effectively

also a question of European-level democracy. In order to settle the question of whether

the emerging system of rule in Europe undermines German democracy, it was impor-

tant to establish the democratic character and quality of the emerging European

system. Thus, as the case was framed, the GCC would have to address the question of

the democratic legitimacy of the integration process and of the EU. This entailed also

taking a stance on the question of the type of polity that had emerged in Europe.

How well the GCC did is hotly disputed, and has also been profoundly criticised.3

The GCC’s ruling is backed up by a comprehensive body of text to explain and justify

it. The court here also spells out in more detail its conception of the EU and what it

considers as appropriate—and inappropriate—integration. The GCC underlines that

the EU is in democratic terms a derivative of the Member States. The EU draws its

democratic legitimacy from the representative-democratic systems in place in the

Member States.4Further, the court interprets the present status of integration as one

that does not substantiate the notion of the EU as a federal state; neither does it contain

the necessary democratic elements to justify federal statehood.

In this sense, the court operates as a democratic theorist of sorts. It devises a

normative conception of democracy (electoral democracy embedded in a unified

people) that serves as the relevant standard for the assessment of the relationship

between German democracy and the system of European rule. The court applies its

conception of democracy to how it understands the EU as a political entity and a

system of rule. These are highly contested issues. Normative theorists do not agree on

any one set of standards; analysts and policy makers disagree on the viability of

democracy at the European level; and analysts, policymakers and citizens alike do not

agree on the kind of polity the EU is. The court has taken a stance in these debates.

The court brings democracy to bear on the European integration process but what is

the nature of the democratic theory of the Euro-polity that we can discern from the

court’s ruling? Our concern in this article is to examine critically the democratic theory

2‘The judgment focuses on the connection between the democratic system prescribed by the Basic Law on

the level of the federation and the level of independent rule which has been reached at the European level;

see Federal Constitutional Court’s Press office, Press Release No 72/2009 of 30 June 2009, available at

http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg09-072en.html.

3See the various contributions by C. Schönberger, F. Schorkopf, D. Halberstam and C. Möllers, and M.

Niedobitek in the Special Section on the Federal Constitutional Court’s Lisbon case in (2009) 8 German

Law Journal 1201–1308. See also contributions by D. Chalmers and U. Liebert in A. Fischer-Lescano, C.

Joerges and A. Wonka (eds), The German Constitutional Court’s Lisbon Ruling: Legal and Political Science

Perspectives, ZERP Discussion Paper 1/2010.

4The GCC notes that: ‘[a]s long as, consequently, no uniform European people, as the subject of legitimi-

sation, can express its majority will in a politically effective manner that takes due account of equality in

the context of the foundation of a European federal state, the peoples of the European Union, which are

constituted in their Member States, remain the decisive holders of public authority, including Union

authority’; see Federal Constitutional Court’s Press office, op cit n2supra.

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