On 10 and 11 February, the German Constitutional Court in Karlsruhe held hearings on whether the Lisbon Treaty breaches the German Constitution. That two full days have been taken out for the hearings shows that the Court has some major concerns about this Treaty. The "reporting judge" is Udo di Fabio (photo), who held the same position in 2005, when “the Constitutional Court surprisingly struck down on the German law which transposed the European Arrest Warrant, to the shame of the German federal government”, as magazine Focus puts it.
And during the hearings De Fabio certainly had some things to say about the Lisbon Treaty. Pointing out that the Treaty involved a clear extension of the EU's competencies, he said, “One has to ask soberly: What competences are left with the Bundestag (the German parliament) in the end?” He also bluntly asked "whether it would not be more honest to just proclaim a European federal state".
Furthermore, he questioned whether the transferral of powers to the EU really means more freedom for EU citizens, asking "Is the idea of going ever more in this direction not a threat to freedom?"
His collegue Judge Herbert Landau said new EU powers in criminal justice affected "core issues" of German legislative authority and Judge Rudolf Mellinghoff asked whether the Treaty wasn't already "in an extensive way" being applied when its comes to the area of criminal sanctions in environment issues, as the European Commission already has the mandate to sanction companies for pollution.
Reportedly, all judges agreed that the Treaty was very hard to read. EUobserver notes that “less-than-clear passages from the treaty were read out aloud, guaranteeing a laugh”. Check out our side-by-side comparison between the European Constitution and the Lisbon Treaty, and you'll see where they're coming from.
Five of the eight judges must approve the ratification Bill for Lisbon in order for it to come into force. Incidentally, five of the judges pursued a line of critical questioning yesterday, suggesting that they are not convinced by the German government's assurances that the Treaty is harmless.
Suedeutsche Zeitung notes that the Court may ask for a referendum if it finds that the Treaty detrimentally affects the German Constitution. The paper notes that “if the judges intervene…it will be because important transfer of powers to the EU is not followed by a corresponding increase in democracy. Europe suffers from lack of democracy”. This is very striking since the Federal Republic of Germany has never held a referendum, not even in the process of its unification in 1990.
Article 146 of Germany's Constitution provides that a referendum may be called if the German constitutional order is to be changed. Gesine Schwan, who was the Social Democrats' nomination for the German Presidency, has said she would support a referendum on the Lisbon Treaty.
A German referendum would put the whole Lisbon Treaty project into question. As the Wiener Zeitung notes: "while it might be easier to ignore Irish rejection of the Treaty, that is certainly impossible in the case of a 'No' vote in the Union’s largest member state. If that happens, there is no future for the Treaty."
It will take at least three months for the Court to reach a verdict. Don't hope for too much. Although not impossible, it would be sensational if the court ruled in favour of a referendum. Still, the judges' comments highlight the serious reservations that exist across Europe about the Lisbon Treaty - and they certainly give some perpsective to the Irish 'no'.