The Lisbon Decision / The Lisbon Ruling
Introduction and Definition of Terms
The Terms Lisbon Decision und Lisbon Ruling refer to the fundamental decision of the Federal Constitutional Court dated 30 June 2009 regarding the Treaty of Lisbon (Case No. 2 BvE 2/08 et al.). This is the key ruling on the compatibility of the Treaty of Lisbon with the Basic Law of the Federal Republic of Germany. The Lisbon Ruling comprehensively sets out the constitutional framework for German participation in the European Union and establishes the limits and participatory rights of the German legislature in the European integration process.
Historical Background
The Treaty of Lisbon
The Treaty of Lisbon, which entered into force on 1 December 2009, reformed the basic structures and decision-making processes of the European Union. It replaced the Constitutional Treaty, which failed in 2005 due to resistance in several member states. The aim of the treaty was to make the Union more democratic, transparent, and efficient. Key changes included strengthening the European Parliament, introducing a permanent President of the European Council, and expanding majority voting in the Council of Ministers.
Reason for the Proceedings before the Federal Constitutional Court
Prior to the entry into force of the Treaty of Lisbon, numerous constitutional complaints and legal disputes between organs were filed with the Federal Constitutional Court. The complainants primarily alleged a possible relinquishment of German sovereignty rights and a violation of the principles of democracy and the rule of law as enshrined in the Basic Law.
Legal Principles and Issues
Standard of Review of the Federal Constitutional Court
Within its remit, the Federal Constitutional Court reviewed in particular:
- The compatibility of the Treaty of Lisbon and the accompanying laws with the Basic Law, especially with the eternity guarantee under Art. 79 (3) of the Basic Law.
- The impact of the European integration process on the principle of democracy (Art. 20 (1) and (2) of the Basic Law), the rule of law, and the principle of popular sovereignty.
- The scope and limitation of the transfer of sovereign powers to the European Union.
Key Content and Core Tenets of the Lisbon Ruling
Compatibility of the Treaty of Lisbon with the Basic Law
The Court declared the Treaty of Lisbon fundamentally compatible with the Basic Law. The transfer of sovereign powers to the EU remains permissible, provided the following conditions are met:
- The essential core of the constitutional order, notably the principles of democracy, the social state, and the rule of law, must not be undermined by European integration (the so-called constitutionally entrenched identity).
- The European Union remains a union of states, i.e., an intergovernmental entity endowed with specific tasks by the member states (not a federation, and not federal statehood for the EU).
Principle of Conferral of Limited Powers
The Federal Constitutional Court emphasized the principle of conferral of limited powers (Art. 5 TEU and Art. 23 (1) of the Basic Law), according to which the EU may only act in areas where the member states have expressly conferred powers on it. Any independent expansion of competences (the so-called “Kompetenz-Kompetenz”) by EU institutions is excluded.
Democratic Principle and Participation of the Federal Republic of Germany
A central aspect of the judgment is the safeguarding of democratic legitimacy at the national level. The Court recognizes parliamentary participation as a key protective mechanism: the government is required to comprehensively inform parliament and obtain its consent for essential steps in integration. This includes, in particular, new steps towards integration, amendments to existing treaties, or the use of so-called bridging clauses.
Accompanying Laws to the Treaty of Lisbon
The Federal Constitutional Court declared the Act of Approval for the Treaty of Lisbon constitutional, but criticized deficiencies in the accompanying laws, particularly the law concerning the expansion and oversight of the Bundestag’s and Bundesrat’s participation rights. The required amendments focused in particular on ensuring comprehensive participation rights for the German representatives in further European integration.
Ultra Vires Review and Identity Review
The Court reserved the right to subject acts of EU bodies that lie outside their mandate (“ultra vires”) or violate the Basic Law’s core principles (“identity review”) to its own control. This ensures the Federal Constitutional Court remains the final authority for protecting the German constitutional order.
Effects of the Lisbon Ruling
Significance for the European Integration Process
The Lisbon Ruling has had a major influence on Germany’s understanding of European integration:
- It establishes the concept of a “union-based medium sovereign” state, where ultimate sovereignty remains with the German legislator.
- The importance of parliamentary oversight in the context of Germany’s participation at the European level has been sustainably reinforced.
- European legislation and treaty amendments require sufficient democratic legitimacy and accountability.
Legal Consequences and Further Developments
The mechanisms for ultra vires and identity review have been applied in later decisions by the Federal Constitutional Court, for example in the PSPP ruling of May 5, 2020, on the European Central Bank. The role of the Bundestag and Bundesrat as guardians of integration was further specified thereafter. This applies in particular to the duty to inform (Article 23 of the Basic Law) and the necessity for explicit parliamentary approval of substantial changes.
Critical Appraisal and Reception
The ruling was discussed across Europe and partially met with criticism because it postulates national oversight of European legal development and thus potentially raises tensions with the autonomy of European law. Supporters see the judgment as a necessary reaffirmation of democracy and a safeguard for Germany’s constitutional identity.
Summary
The Lisbon Ruling of the Federal Constitutional Court represents a milestone in the constitutional development of Germany. It ensures democratic scrutiny and participation in European integration and defines the conditions under which powers can be transferred to the European Union. The judgment preserves the balance between European unification and national sovereignty and has since formed a central reference point for assessing and further developing Germany’s European policy.
Literature and Further Links
- Federal Constitutional Court, Decision of 30 June 2009, Case No. 2 BvE 2/08 et al.
- Treaty on European Union (TEU)
- Treaty on the Functioning of the European Union (TFEU)
- Basic Law for the Federal Republic of Germany (especially Art. 23, Art. 20, Art. 79)
(References and further literature can be found in the respective legal texts and in the original decisions of the Federal Constitutional Court.)
Note: The term Lisbon Ruling or Lisbon Decision refers exclusively to the aforementioned decision of the Federal Constitutional Court and serves as a key term in German and European constitutional law.
Frequently Asked Questions
What were the main legal arguments that led to the Federal Constitutional Court being called upon in connection with the Lisbon Treaty?
Several complainants, including members of the Bundestag and prominent constitutional law scholars, principally objected to a violation of the democratic principle, the principle of popular sovereignty, and an inadequate safeguarding of the powers of the German Bundestag. They argued that the Lisbon Treaty would lead to a transfer of sovereign rights to the European Union to an extent that would fundamentally curtail the Bundestag’s and Bundesrat’s integration responsibility as well as the legislative latitude of the German legislator. In particular, they feared what is called an “Kompetenz-Kompetenz” of the EU, that is, the ability to confer further powers upon itself without always involving the national parliaments. The central question was whether the democratic requirement of the Basic Law and the principles of parliamentary involvement were upheld in the transfer of sovereignty rights.
What role did the democratic principle of the Basic Law play in the Lisbon Ruling?
The Federal Constitutional Court placed the principle of democracy as enshrined in Article 20 (1) and (2) and Article 79 (3) of the Basic Law at the center of its decision. It held that any transfer of sovereign powers to supranational organizations such as the EU does not violate the chain of democratic legitimacy, i.e., feedback to the German people, as long as the transfer is based on a sufficiently identifiable and controllable mandate. German state organs must therefore have sufficient participatory powers so that they can continue to influence and control essential political decisions. For this reason, the Court required legislative accompanying laws that do justice to the rights of participation and control of the Bundestag and Bundesrat.
How does the Lisbon Ruling safeguard the Bundestag’s integration responsibility?
In the Lisbon Ruling, the so-called integration responsibility was expressly explained for the first time as a constitutional principle. This term, as understood by the Federal Constitutional Court, describes the Bundestag’s duty to actively accompany, monitor, and control the ongoing process of integration. Concretely, this means that significant expansions of EU competencies and amendments to EU treaties require the Bundestag’s consent, as only this ensures democratic legitimacy and influence. The Court therefore demanded that all national co-decision rights of member states be made accessible and that the government be legally obliged to provide comprehensive information and participation for parliament.
To what extent did the Federal Constitutional Court emphasize the principle of conferral of limited powers?
In the Lisbon Ruling, the Court underscored the principle of conferral of limited powers, as already anchored in Article 5 (1) and (2) TEU and Article 23 of the Basic Law. According to this principle, the EU may only act within the competences expressly conferred upon it by the member states; any independent extension of powers, such as a Kompetenz-Kompetenz, is excluded. The member states remain the “masters of the treaties” and may confer further powers only via explicit, democratically legitimized acts of consent. Through this clarification, the Court significantly strengthened the national parliaments’ control over European integration.
What significance does the Federal Constitutional Court attach to the eternity guarantee of the Basic Law in the context of European integration?
The Court clarified that certain constitutional principles, in particular the eternity guarantee of Article 79 (3) of the Basic Law, may not be abandoned or altered by any form of European integration. This guarantee especially protects the fundamental structure of the democratic, rule-of-law, and social federal state as well as the principle of popular sovereignty. The Federal Constitutional Court therefore declared that the substance of Germany’s constitutional identity remains inviolable, even in the face of further European integration, and may, if necessary, preclude any further transfer of sovereign rights.
How has the Lisbon Ruling affected the relationship between the Federal Constitutional Court and the European Court of Justice?
The ruling emphasizes that the Federal Constitutional Court is generally willing to accept rulings of the European Court of Justice (ECJ) as long as these remain within the limits of conferred competences and do not violate fundamental constitutional guarantees. At the same time, however, the German court reserved the right, within the scope of so-called “identity review,” to examine even after the Lisbon Treaty has entered into force whether core principles of the German constitution are infringed by actions or jurisprudence of the EU. A specific reservation of review was thus established, which makes the court the final guardian of Germany’s constitutional identity.
What consequences did the Lisbon Ruling have for the legislative process of accompanying laws in Germany?
Following its ruling, the Federal Constitutional Court ordered that the Lisbon Treaty could only be ratified in conjunction with a new, substantially expanded accompanying law. This law, the so-called “Lisbon Accompanying Law,” was intended to significantly strengthen the information, oversight, and participation rights of the Bundestag and Bundesrat vis-à-vis the Federal Government in all EU matters. The aim was to ensure continued democratic control over the integration process and to enforce the parliament’s integration responsibility in practice. This led to a marked institutionalization of parliamentary rights of co-determination on EU-relevant legislative developments.
