Update Materials
Update 4 - September 2009
A higher power? (Relevant to chapters 2 and 3)
As we note in Chapter Two, the 'ever closer union' that is the formally declared (if not actually shared) ambition of the EU and its member states depends above all on the fact that European law not only trumps domestic law but becomes an integral part of it. On the other hand, as we note in Chapter Three, many member states have powerful, or at least increasingly assertive, constitutional courts, the role of which is to ensure, among other things, that governments do not trample on the rights and interests of their citizens. Many Eurosceptics would argue that, by ceding power and responsibility to 'Brussels', this is exactly what those governments are doing. Opponents of the EU are therefore beginning to look at using such courts to limit the extent to which governments can, in their eyes anyway, give away sovereignty behind their citizens' backs, not least by signing treaties which those citizens are not given any direct role in ratifying, say by a referendum.
Germany is an interesting case. It has long been regarded, along with France, as one of the so-called 'motors of integration'. Indeed, it is possible to argue that one of the raisons d'etre of the European project was to bind those two countries together after decades of armed conflict that culminated in the Second World War. Certainly, many analysts saw the advent of the single currency (the euro) not just as a step toward a fully federal Europe but as a quid pro quo demanded by France (and other member states) for their not raising concerns about the reunification of West and East Germany when the Cold War ended in 1989-1990. But the Federal Republic of Germany (to give the country its full title) also has one of the Europe's most powerful constitutional courts, charged with the maintenance of its Grundgesetz (Basic Law) and with balancing the interests and the powers of the national government in Berlin and the sixteen states (or länder).
It therefore poses something of a problem that the Court's ruling on the EU's proposed Lisbon Treaty in June 2009 argued that, since Germany is by law a democratic state, it could had to be careful not to cede further responsibilities to an EU which (notwithstanding the existence of the European Parliament or EP) was not, in its view, a fully-fledged democracy. In order to ensure that this did not happen, the German parliament, the Court requested, must pass legislation to give it more control over any transfer of powers to Brussels.
The ruling did not, as some opponents of the Treaty argued, suggest that the latter was somehow incompatible in principle with the Basic Law. However, to say the least, its qualified nature - and the need for a parliamentary vote - was an irritant to the German Chancellor, Angela Merkel. She was understandably concerned lest the differing opinions about the ruling undermine the unity of the centre-right in the run-up to what she hoped would be a successful general election campaign in September 2009. She was also keen not to provide ammunition to those in other countries (most obviously the Czech Republic, Poland, and Ireland) who still believed they could delay the ratification of the Lisbon Treaty.
But the ruling has implications beyond even this. If European integration has relied on law to embed the EU in the domestic affairs of its member states, its continued progress may be vulnerable to legal authorities within those states which do not answer to the government but have a duty to what they regard as a higher power, namely the constitutions that ultimately give those governments life and legitimacy.
The answer may be to make the EU more democratic, but it is not immediately apparent how this can be done. Significantly increasing the power of the European Parliament - something that has already occurred over at least the last decade - would not meet with the approval of member state governments. The latter would be worried about being outvoted by a legislature in which they were in no position to control and which, by definition, would not be charged with looking after their separate interests but instead with expressing a vaguely defined collective will. Even in the unlikely event that member states could be reconciled to this scenario, it would still be difficult to call the EU a democracy since it lacks an elected executive that the EP could hold to account. The other solution - effectively that proposed by the German Constitutional Court - would be to give more powers (back) to national parliaments. But there are very few governments in Europe, even in countries where they normally have majorities that give them control over their legislatures, which would be keen to surrender such powers.
No doubt, some kind of 'work around' will (as usual) be found in order to allow the EU to muddle through and permit integration to progress. Chances are, however, that, in the future, what some see as the judicialization of politics in many European countries will increasingly work both ways: on the one hand, Eurosceptics will be unable to resist further transfers of sovereignty because they are legally watertight; on the other, they will resort to courts which exist over or above the rest of their countries' legal systems to mount an even more fundamental challenge to the European project.
