The Lisbon Judgment of the German Constitutional Court: A Court‐Ordered Strengthening of the National Legislature in the EU

• Published date: 01 September 2010
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00523.x
• Date: 01 September 2010
• Author: Philipp Kiiver

eulj_523578..588

The Lisbon Judgment of the German

Constitutional Court: A Court-Ordered

Strengthening of the National Legislature

in the EU

Philipp Kiiver*

Abstract: This article discusses the judgment of the German Constitutional Court on the

constitutionality of the Treaty of Lisbon, concentrating on the court’s insistence on the

prerogatives of the national legislature. The court’s insistence on prior national legislative

ratification for the application of the simplified treaty revision procedure and of similar

de facto amendment procedures, including the flexibility clause, is conservative but under-

standable from the perspective of German constitutional law. The prescription of prior

bicameral ratification for the application of the flexibility clause makes the German

government procedurally one of the most tightly controlled in the EU, although this would

not be unique, and the effect of such control will depend on the cleavage between the

government and the national legislature, especially the German upper chamber. None of

the procedures insisted upon by the court are incompatible with EU Treaty law. Whether

the new procedures will actually enhance the democratic legitimacy of EU measures in

German perception will depend on the degree to which political parties in the national

legislature will publicly politicise their stance on the decisions in question, allowing voters

to hold them to account. All the court can do is prescribe opportunities where such

politicisation may take place.

I Introduction

On 30 June 2009, the German Federal Constitutional Court delivered its judgment1on

the compatibility of the Treaty of Lisbon with the German Basic Law. While the court

found the Lisbon Treaty constitutional as such, it declared the accompanying statute

regarding the involvement of the national legislature in EU decision making to be

unconstitutional. The court ordered the statute to be amended, so as to equip the

* LLM, Associate Professor of European and Comparative Constitutional Law, Maastricht University, the

Netherlands. Author of a monograph on the role of national parliaments in the European Union (Kluwer

Law International, 2006), and of various publications on democratic accountability and the role of

parliaments in the EU; co-author of An Introduction to Comparative Constitutional Law (Intersentia, 2nd

edn, 2009).

1Judgment of 30 June 2009, 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR

182/09, available in German at http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_

2bve000208.html.

European Law Journal, Vol. 16, No. 5, September 2010, pp. 578–588.

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