Lisbon Before The Courts Comparative Perspectives
Lisbon Before The Courts Comparative Perspectives
Lisbon Before The Courts Comparative Perspectives
Lisbon decisions of the constitutional courts in Austria, the Czech Republic, France,
Germany, Hungary, Latvia and Poland from a comparative perspective – Democ-
racy, sovereignty and identity – Permeability of national and supranational law –
Ratification of the Lisbon Treaty and its constitutional foundations – Procedural
background and legal outcome of the Lisbon decisions – Differences of institu-
tional self-conception – Parliamentary responsibility for integration – Prior parlia-
mentary assent to the future application of ‘dynamic treaty provisions’ – Different
conceptions of national and multi-levelled democracy – Popular vote – Constitu-
tional limits to European integration – Limits indicating the necessity of an amend-
ment and limits protecting the inalienable substantial core of a constitutional order
– German Bundesverfassungsgericht only court in Europe spelling out an eternity
clause in a detailed, catalogue style manner – Judicial restraint – Ultra vires and
identity review – Article 4.2 TEU as an integration clause of EU law and not a
derogation clause – Comparative dialectics
Introduction
The constitutional foundations of European integration have been subject to far-
reaching transformation. The entry into force of the Lisbon Treaty on 1 December
2009 is a milestone in this ongoing journey. However, the reform of European
Union treaty law is just one, albeit important stone in the game. Focusing exclu-
sively on the treaty changes does not capture the whole picture, for the remarkable
development of national constitutional law has shaped and conditioned the reform
of European constitutional law just as well. The activities on the Union and on
* Dr. iur. (Humboldt-University Berlin), Maîtrise en droit (Paris 1), research assistant and lec-
turer, Walter-Hallstein-Institute for European Constitutional Law (WHI), Humboldt-University
Berlin, contact: [email protected]. This article goes back to a paper presented at
the 8th conference of the European Constitutional Law Network (ECLN) 2010 in Madrid. For
helpful suggestions on earlier drafts I would like to thank Alexander Daniel, Edgar Lenski and Jan-
Herman Reestman.
the member state levels were closely interrelated and may literally be told as a
story of ‘multilevel-constitutionalism in action.’1
A considerable part of today’s national constitutional law relating to the Euro-
pean Union has found its current shape in recent times. Many of the Central and
Eastern European countries that joined the Union in 2004 and 2007 enacted new
integration clauses in their constitutions providing the normative basis for Union
membership.2 However, founding members such as France and Germany as well
as ‘old’ member states such as Ireland and Portugal also passed important EU-
related amendments. Here, the provisions regulating the constitutional permeabil-
ity3 for supranational law were significantly reframed in the course of the
ratification of the Constitutional Treaty and the Lisbon Treaty.4 This process of
adjustment is continuing. In July 2010 the Austrian legislation passed a detailed
constitutional amendment with regard to parliamentary rights in EU matters.5 In
Sweden, the modernization of EU related articles is expected to come into force
on 1 January 2011, as a part of a major constitutional reform package.6 In other
countries, there are calls for the introduction of explicit EU provisions in the
constitution as well.7
Alongside the textual evolution, national supreme jurisdictions all over Europe
have delivered an unprecedented series of landmark decisions within a relatively
short period of time. These decisions address key questions of European constitu-
tionalism. Just recall the declaration of the Spanish Constitutional Tribunal on
the Constitutional Treaty in 2004 with its already famous distinction between
8 Spanish CT, Case 1/2004 Constitutional Treaty, declaration of 13 Dec. 2004, with case notes
of F. Castillo de la Torre, 42 CMLRev (2005) p. 1169 et seq., C.B. Schutte, 1 EuConst (2005)
p. 281 et seq. and A.C. Becker, EuR (2005) p. 353 et seq.
9 Polish CT, Case K 18/04 Accession Treaty, judgment of 11 May 2005. An English summary is
available at: <www.trybunal.gov.pl/eng/summaries/documents/K_18_04_GB.pdf>. For com-
ments, see M. Bainczyk and U. Ernst, EuR (2006) p. 247 et seq.; A. Łazowski, 3 EuConst (2007)
p. 148 et seq.; S. Biernat, ‘Offene Staatlichkeit’, in A. v. Bogdandy and P.M. Huber (eds.), Ius Pu-
blicum Europaeum, Vol. 2 (C.F. Müller 2008) § 21 Polen, para. 45.
¹0 For a comparative analysis, see A. Albi, ‘Ironies in Human Rights Protection in the EU: Pre-
Accession Conditionality and Post-Accession Conundrums’, 15 ELJ (2009) p. 46, 52 et seq.; id.,
‘Supremacy of EC Law in the New Member States’, 3 EuConst (2007) p. 25, 48 et seq.; W. Sadur-
ski, ‘“Solange, chapter 3”: Constitutional Courts in Central Europe – Democracy – European
Union’, 14 ELJ (2008) p. 1, 6 et seq.
¹¹ See on that J. Komárek, ‘European constitutionalism and the European Arrest Warrant – in
Search of the Limits of “Contrapunctual Principles”’, 44 CMLRev (2007) p. 9, 16 et seq.; Z. Kühn,
‘The European Arrest Warrant, Third Pillar Law and National Constitutional Resistance/Accept-
ance’, 3 CYELP (2007) p. 99 et seq.
¹² French CC, Case 2004-505 DC Constitutional Treaty, decision of 19 Nov. 2004. Cf. the com-
ments of G. Carcassonne, 1 EuConst (2005) p. 293 et seq.; F. Chaltiel, 484 RMC (2005) p. 5 et seq.;
X. Magnon, 62 RFDC (2005) p. 329 et seq.; J. Roux, RDP (2005) p. 59 et seq.
¹³ French CC, Case 2004-496 DC E-Commerce, decision of 10 June 2004. See the case notes of
F.C. Mayer, EuR (2004) p. 925 et seq. (also relating to the decision on the Constitutional Treaty);
J. Dutheil de la Rochère, 42 CMLRev (2005) p. 859 et seq.; J.-H. Reestman, 1 EuConst (2005)
p. 302 et seq. French CC, Case 2006-540 DC Information Society, decision of 27 July 2006. For
comments see F. Chaltiel, RFDC (2006) p. 837 et seq. and C. Charpy, 3 EuConst (2007) p. 436,
445 et seq.
¹4 French CE, Case 287110 Ass. Arcelor, decision of 8 Feb. 2007, para. 11. Cf. the case notes of
P. Cassia, RTDE (2007) p. 406 et seq.; F. Chaltiel, RMC (2007) p. 335 et seq.; X. Magnon, RFDA
(2007) p. 578; A. Levade, RFDA (2007) p. 564, 577; C. Charpy, 3 EuConst (2007) p. 436, 440 et
seq. and p. 452 et seq.; F.C. Mayer and E. Lenski and M. Wendel, EuR (2008) p. 63 et seq.
¹5 French CE, Case 298348 Mme P, decision of 30 Oct. 2009, para. 9; cf. C. Charpy, 6 EuConst
(2010) p. 123 et seq. and C.D. Classen, EuR (2010) p. 557 et seq.
¹6 German BVerfG, Case 2 BvR 2661/06 Honeywell, order of 6 July 2010, paras. 58 et seq. The
decision was published not until 26 Aug. 2010. An English translation is available at <www.bun-
desverfassungsgericht.de/en/decisions/rs20100706_2bvr266106en.html>.
Lisbon Before the Courts: Comparative Perspectives 99
When ‘Lisbon’ was brought before the courts, it was thus in the context of a
highly dynamic evolution of European constitutional law, both at textual and
jurisprudential levels. Supreme jurisdictions of several member states – old and
new – took Lisbon as an opportunity to add major voices to this jurisprudential
choir. It is not exaggerated to claim that the three-year Lisbon saga has become
one of the most important cross-border lines of jurisprudence in the history of
European constitutionalism, not only in numbers but particularly in terms of
substance.
The first decision was issued on 20 December 2007 by the French Conseil
constitutionnel,17 followed by the order of the Austrian Constitutional Court on
30 September 2008,18 the first judgment of the Czech Constitutional Court on
26 November 2008,19 the judgment of the Latvian Constitutional Court on
7 April 2009,20 the judgment of the German Bundesverfassungsgericht on 30 June
2009,21 the second judgment of the Czech Constitutional Court on 3 November
2009,22 the judgment of the Hungarian Constitutional Court on 12 June 201023
and the second order of the Austrian Constitutional Court the very same day.24
The most recent Lisbon decision so far was delivered by the Polish Constitutional
Tribunal on 24 November 2010.25 Another case is still pending before the Danish
²6 See on that J.H. Danielsen, ‘One of Many National Constraints on European Integration:
Section 20 of the Danish Constitution’, 16 EPL (2010) p. 181, 190 et seq.
²7 Dutch State Council, Case W02.07.0254/II/E Lisbon-Mandate, opinion of 12 Sept. 2007.
An English translation is available at <www.raadvanstate.nl/adviezen>. For a comment, see J. Ziller,
‘The Law and Politics of the Ratification of the Lisbon Treaty’, in S. Griller and J. Ziller (eds.), The
Lisbon Treaty (Springer 2008) p. 309, 319 et seq.
²8 Contrary to what it had said in respect to the Constitutional Treaty, the Danish Ministry of
Justice qualified the Lisbon Treaty as a treaty which did not transfer competences in the sense of the
constitutional integration clause in the Danish constitution (Art. 20) and thus could be ratified like
an ordinary treaty of public international law under Article 19 of the Danish constitution.
²9 ‘The Treaty of Lisbon: an impact assessment’, report of 13 March 2008, available at: <www.
publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf>.
³0 Apart from the almost uncountable number of comments on the decision of the German
BVerfG, there are apparently only three contributions dealing with some of the Lisbon decisions in
a comparative perspective, cf. J.-H. Reestman, ‘The Franco-German Constitutional Divide’, 5 Eu-
Const (2009) p. 374 et seq. specifically concerning the aspect of constitutional identity; A. Weber,
‘Die Europäische Union unter Richtervorbehalt’, 65 JZ (2010) p. 157 et seq. with a comment on
the German Lisbon decision in a broader comparative perspective, and R.U. Krämer, ‘Looking
through Different Glasses at the Lisbon Treaty: The German Constitutional Court and the Czech
Constitutional Court’, in A. Fischer-Lescano et al. (eds.) ‘The German Constitutional Court’s Lis-
bon Ruling: Legal and Political Science Perspectives’, ZERP-Diskussionspapier 1/2010 (Universität
Bremen 2010) P. 11 et seq. comparing the first decision of the Czech CC with the Lisbon judgment
of the German BVerfG.
Lisbon Before the Courts: Comparative Perspectives 101
³¹ An author has aptly compared the resulting multitude of interpretations with the Japanese
film ‘Rashomon’. All characters have experienced or suffered the same incident, but recount it
completely different. See F.C. Mayer, ‘Rashomon in Karlsruhe – A Reflection on Democracy and
Identity in the European Union’, Jean Monnet Working Paper 5/10.
³² German BVerfG Honeywell, supra n. 16 at para. 58 et seq.
³³ Ibid., para. 102.
³4 The term is translated by the BVerfG as ‘openness towards European law’. It must be doubted
that this is an appropriate translation as the German term then would have been – semantically
even more precise – framed ‘Europarechtsoffenheit’.
³5 German BVerfG Treaty of Lisbon, supra n. 21 at para. 225, 240 et seq., and 340. For possible
meanings of the concept, see A. Voßkuhle, ‘Der europäische Verfassungsgerichtsverbund’, NVwZ
(2010) p. 1, 5; id., ‘Multilevel Cooperation of the European Constitutional Courts’, 6 EuConst
(2010) p. 175 et seq.; F.C. Mayer, ‘Europarechtsfreundlichkeit und Europarechtsskepsis in der
Rechtsprechung des Bundesverfassungsgerichts’, in T. Giegerich (ed.), Der offene Verfassungsstaat des
Grundgesetzes nach 60 Jahren (Duncker & Humblot 2010) p. 237, 256 et seq.
³6 German BVerfG Treaty of Lisbon, supra n. 21 at para. 224, 228 et seq., 247 et seq., 263, 280
et seq., 299 et seq.
102 Mattias Wendel EuConst 7 (2011)
comes to cross-border comparison. Not only the ambiguities inherent in the con-
cepts themselves, but also the different legal cultures and traditions may cause
confusion.37 Comparison then runs the risk of getting lost in presuppositions and
preconceptions. Picking out an abstract figure of argument contained in judgment
A and seeking for possible equivalents in judgment B might end up a comparison
of cherries with bananas.
In order to achieve more conclusive results, it is thus reasonable to restrict
comparative efforts specifically to those statements which have materialised at least
to some degree in the legal outcome. As a consequence, scholarly obiter dicta with
generic statements about the nature and finality of the European Union are not
central to this comparative review, even though they were written with the inten-
tion to have a lasting impact on (academic) debate.38 Instead, the following
analysis focuses particularly on those sections of the merits that determine the
judgments’ results.
Even compared in this way, the Lisbon decisions reveal considerable discrepan-
cies. In particular, the varying premises of democratic legitimacy in multi-level-
systems entail varying conclusions regarding the constitutional requirements for
the participation of national parliaments. Further, different institutional self-
conceptions and normative ideas of sovereignty and (national) identity entail
different conceptions of constitutional limits and judicial reservations. But before
addressing these substantive questions, let us recall the procedural background of
the Lisbon cases and give a general overview over the decisions. Notably, enlighten-
ing differences become apparent even following such an examination.
³7 For the obscurity and polysemy of the term sovereignty in a comparative context, see Wendel,
supra n. 4, ch. 3.
³8 In that sense D. Thym, ‘In the Name of Sovereign Statehood’, 46 CMLRev (2009) p. 1795,
1821.
Lisbon Before the Courts: Comparative Perspectives 103
³9 The Austrian CC has also delivered decisions on both occasions, but rejected all remedies as
inadmissible, vide infra.
40 See the contribution of J. Dutheil de la Rochère, in I. Pernice and J.M. Beneyto Pérez (eds.),
Europe´s Constitutional Challenges in the Light of the Recent Case Law: Lisbon and Beyond (Nomos
2011 forthcoming).
4¹ Dutch State Council Lisbon-Mandate, supra n. 27, point 3.4. See on that J. Ziller, ‘The Law
and Politics of the Ratification of the Lisbon Treaty’, in S. Griller and J. Ziller (eds.), The Lisbon
Treaty (Springer 2008) p. 309, 322 et seq.
4² French CC Treaty of Lisbon, supra n. 17, in particular paras. 12, 21, 24, 26 et seq. and 29.
4³ French CC Constitutional Treaty, supra n. 12 at paras. 13 and 22.
44 Spanish CT Constitutional Treaty, supra n. 8, in particular points II-4 and II-6.
45 The advisory opinions are not published. For an analysis cf. F. Delpérée, ‘Le Conseil d’Etat de
Belgique et le traité établissant une Constitution pour l’Europe’, 21 RFDA (2005) p. 242 et seq.
46 Cf. J. Nergelius, ‘Sweden’s Possible Ratification of the EU Constitution: A Case-Study of
“Wait and See”’, in A. Albi and J. Ziller (eds.), The European Constitution and National Constitutions
( Kluwer 2007) p. 183, 187.
104 Mattias Wendel EuConst 7 (2011)
last but not least, the new powers given to national parliaments under EU law.47
Hence, in the aftermath of both decisions a constitutional amendment had to be
passed.48 In both cases, these amendments expressly authorised France to partici-
pate in the European Union under the conditions laid down in the Constitu-
tional Treaty and the Lisbon Treaty respectively.49 Both revisions also aimed at the
constitutional authorisation and implementation of the new rights of the French
parliament under EU law.50 Most of the new provisions were enacted under the
condition of the coming into force of the respective treaty. As the ratification of
the Constitutional Treaty failed in 2005, the major part of the provisions regard-
ing that Treaty never came into effect, while their successors regarding the Lisbon
Treaty only entered into force on 1 December 2009.51 The French revision pro-
cedure is thus a classic example of the mutual interaction and interdependence of
national and supranational constitutional law.
47 French CC Constitutional Treaty, supra n. 12 at paras. 27 et seq. and later French CC Treaty
of Lisbon, supra n. 17, in particular paras. 18 et seq. With regard to parliamentary rights, the CC
demanded in its Lisbon decision – in addition to what it had already decided in its previous decision
concerning the Constitutional Treaty – a constitutional revision also with regard to the parliamen-
tary veto right under Art. 81.3 TFEU and the subsidiarity control mechanism under the reframed
Art. 7.3 of Protocol No. 2 on the exercise of the principles of subsidiarity and proportionality. See
paras. 30-32 of the Lisbon decision.
48 Constitutional Laws No. 2005-204 of 1 March 2005 (with view to the Constitutional Treaty)
and No. 2008-103 of 4 Feb. 2008 (with view to the Lisbon Treaty). In addition, the EU related
provisions of the French constitution were amended significantly by the constitutional reform-
package contained in Constitutional Law No. 2008-724 of 23 July 2008 which aimed at the ‘mod-
ernisation of the institutions’. With Art. 61-1 this law also introduced the constitutional basis for
the new a posterior review-powers of the French CC (so-called question prioritaire de constitution-
nalité).
49 Art. 88-1. Before the coming into force of the Lisbon Treaty Art. 88-1 contained a separate
para. 2 according to which France ‘can participate’ (‘peut participer’) in the EU under the condi-
tions laid down in the Constitutional Treaty or the Lisbon treaty (see the respective first article of
the Constitutional Laws No. 2005-204 and No. 2008-103).
50 Cf. Arts. 88-4, 88-6 and 88-7 of the French Constitution. Similar to Art. 23.1a of the Ger-
man Basic Law, Art. 88-6.3 frames the subsidiarity action as a parliamentary minority right.
5¹ With the coming into force of the Lisbon Treaty, the general integration clause in Art. 88-1
was also recast, according to Art. 2 of the constitutional law 2008-103. Art. 88-1 now states that
the French Republic ‘shall participate in the European Union constituted by States which have
freely chosen to exercise some of their powers in common by virtue of the Treaty on European
Union and of the Treaty on the Functioning of the European Union, as they result from the treaty
signed in Lisbon on 13 Dec. 2007.’
Lisbon Before the Courts: Comparative Perspectives 105
5² For the decisions of the Czech CC, see the contribution of J. Zemánek, in I. Pernice and
J.M. Beneyto Pérez (eds.), Europe´s Constitutional Challenges in the Light of the Recent Case Law:
Lisbon and Beyond (Nomos 2011 forthcoming).
5³ Constitutional Law No. 395/2001 of 18 Oct. 2001.
54 Czech CC Treaty of Lisbon I, supra n. 19.
55 Albeit including some provisions which were already in force within the framework of the
EU- and the EC-treaty, cf. ibid., paras. 75, 77 et seq. and 85-87. See on that P. Bříza, supra n. 19 at
p. 145 et seq.
56 Czech CC Treaty of Lisbon II, supra n. 22.
57 Ibid., paras. 115 et seq.
58 Ibid., para. 121.
106 Mattias Wendel EuConst 7 (2011)
that this obligation exists a fortiori when a treaty has been approved with the
qualified constitutional majority under the terms of the Czech integration clause
(Article 10a).59 In other words, when doubts about the constitutionality of an EU
treaty arise, only a preventive treaty review initiated within an appropriate period
of time can postpone ratification until either a decision of conformity is issued or,
in case of conflict, a constitutional amendment is passed.60
Hungarian constitution.65 But it did not come to this worst-case scenario as the
Court found the Lisbon treaty to be entirely compatible with the constitution.
However, it gave the competent political actors a broad hint, that in case of a
major reform package like the Lisbon Treaty, the use of the ex ante treaty review
would be desirable.66
procedure, the general regime of Union competences and the flexibility clause
under Article 352 TFEU. In contrast, the Tribunal had to drop the case relating
to the much more comprehensive petition of the group of deputies. The simple
reason for this was that their representative member had left the courtroom in
protest during the oral hearing and was therefore regarded as being absent.70
However, it is not out of the question that the same group of deputies will make
a second effort to bring the case before the Tribunal, including the review of con-
stitutionality of the new accompanying legislation which regulates the cooperation
of the Polish government and the parliament in EU affairs.
70 The representative of the group of deputies, deputy Antoni Macierewicz, stormed out of the
auditorium after the CT had rejected his motion to postpone the judgment until the bill regulating
the cooperation of the government and the parliament in EU affairs came into force. The CT
rejected the motion because the initial proceeding covered only the constitutionality of the Lisbon
Treaty, but not of the (future) accompanying legislation.
7¹ The intra-institutional proceedings initiated by the parliamentary group of the Left Party
against the chamber of deputies (Bundestag) were declared inadmissible to a large extent.
7² Cases 2 BvR 839/05 and 2 BvE 2/05.
7³ This argument was given in a letter by the then judge rapporteur Broß addressed to the par-
ties.
Lisbon Before the Courts: Comparative Perspectives 109
However, that may be, unlike the French Conseil constitutionnel, the Bundes-
verfassungsgericht thus only delivered a decision on the Lisbon Treaty. Like in the
previous Maastricht judgment74 the catalyst for admissibility was the right to vote
under Article 38 § 1 of the German Basic Law. The German court construes this
right dogmatically as ‘equal to a fundamental right’ and substantially as
According to the court, the complainants in the Lisbon case could thus rely on
Article 38 § 1 in order to claim a violation of the principle of democracy, the loss
of German statehood and ‘a violation of the principle of the social state.’76 The
wide interpretation of Article 38 § 1 had already been vividly criticised in the
aftermath of the Maastricht judgment77 as it enables virtually every German hav-
ing the right to vote to initiate a de facto objective review of constitutionality, al-
though this specific procedure is only open to an enumerated circle of petitioners
under Article 93 § 1 no. 2 of the Basic Law.78
What is new in the Lisbon decision is that the Bundesverfassungsgericht connects
the right to vote with the constitutional identity as a whole and, furthermore, with
the ‘respect of the constituent power of the people.’ It thus extends its scrutiny in
two ways.79 First, by invoking Article 38 § 1, a German individual can now claim
the violation of theoretically all principles protected by the eternity clause of Ar-
ticle 79 § 1, as far as he or she plausibly demonstrates a ‘necessary connection’ of
these principles with the principle of democracy.80 Hence, the German court could
not only declare admissible the allegation that the principle of democracy was
74 German BVerfG, Case 2 BvR 2134 et al. Treaty of Maastricht, judgment of 12 Oct. 1993,
BVerfGE p. 89, 155, 171 et seq.
75 German FCC Treaty of Lisbon, supra n. 21 at para. 208.
76 Ibid., para. 168. The ‘principle of the social state’ is part of the basic principles under
Art. 20.1 and therefore protected in its material core by Art. 79.3.
77 See already C. Tomuschat, ‘Die Europäische Union unter der Aufsicht des Bundesverfas-
sungsgerichts’, EuGRZ (1993) p. 489; K.M. Meessen, ‘Maastricht nach Karlsruhe’, NJW (1994)
p. 549, 550 et seq. In the context of the Lisbon judgment, see now R. Bieber, ‘An Association of
Sovereign States’, 5 EuConst (2009) p. 391, 396.
78 These privileged applicants are: the Federal Government, a Land government, or one fourth
(until 30 Nov. 2009 a third) of the members of the Bundestag.
79 Thym, supra n. 38 at p. 1796 et seq.
80 German BVerfG Treaty of Lisbon, supra n. 21 at paras. 172 et seq., in particular 182.
110 Mattias Wendel EuConst 7 (2011)
violated, but also that the principle of the social state was encroached upon.81 In
contrast, it considered the complaints to be inadmissible as far as they were based
on an alleged infringement of the rule of law and the separation of powers.82
The second extension of the right of scrutiny relates to the pre-constitutional
(sic!) concept of the constituent power of the people and thus virtually transcends
the legal order of the Basic Law.83 According to the Bundesverfassunsgericht, a
complainant can rely on Article 38 § 1 in order to challenge the loss of sovereign
statehood because the only power with the right to repeal the Basic Law – and
with it the German state – is the constituent power of ‘the people.’84 The key idea
is that what is exclusively reserved to the pouvoir constituant must not be touched
by the pouvoir constitué.85 The court held that the ‘pre-constitutional right’ to give
oneself a constitution86 is not prescribed but merely declaratively mirrored in
Article 146 of the German Basic Law.87 To frame it differently, Article 38 § 1
ensures an inner-systemic right of participation within the existing system, while
Article 146 reflects an outer-systemic right of participation to create a new system.
The logical fracture is that, according to the Bundesverfassungsgericht, the inner-
systemic voter shall be entitled, by relying on Article 38 § 1, to become the guard-
ian of the outer-systemic constituent power reflected in Article 146!88
In brief, the Bundesverfassungsgericht put the right to vote in the centre of its
reasoning and thus enabled several claimants, acting in private capacity, to chal-
lenge the parliamentary approving act as well as the accompanying laws. Ulti-
mately, the German court found the approving act to be compatible with the
constitution. However, it declared the accompanying legislation unconstitutional
to the extent that it did not meet the Court’s demands for an adequate degree of
parliamentary ‘responsibility for integration.’ The particular quirk of this outcome,
unique in Europe, was that the Bundesverfassungsgericht allowed ratification only
under the condition that a new accompanying legislation fulfilling its demands
came into force. The German legislator followed the court by enacting a new
package of legislation, including the so-called ‘Responsibility for Integration Act’
(RIA).89 After the Bundesverfassungsgericht had declared the remedies directed
against these new laws inadmissible,90 the package could enter into force and thus
paved the way for ratification.
Not every EU citizen has a comparable right to initiate a de facto full-scale
review of constitutionality regarding the national ratification procedure. Even an
institutionally strong constitutional jurisdiction91 is no guarantee that a citizen
acting in private capacity may question the ratification procedure by means of an
individual complaint.
89 The RIA is contained in Art. 1 of the new Act Extending and Strengthening the Rights of the
Bundestag and the Bundesrat in European Union Matters of 22 Sept. 2009, I no. 60 Official Fed-
eral Law Gazette (2009) p. 3022 et seq. The very same day, two other laws were passed, concerning
the cooperation between Federal Government and Bundestag in EU matters (I no. 60 Official Fed-
eral Law Gazette (2009) p. 3026 et seq.) as well as the cooperation between the Federal state and
the Länder in EU matters (I no. 60 Official Federal Law Gazette (2009) p. 3031 et seq.). For a com-
ment, see M. Nettesheim, ‘Die Integrationsverantwortung – Vorgaben des BVerfG und gesetzgeber-
ische Umsetzung’, 63 NJW (2010) p. 177 et seq.
90 German BVerfG, Case 2 BvR 2136/09 Accompanying Laws to the Lisbon Treaty, order of
22 Sept. 2009.
9¹ For an overview over the ‘constitutional’ jurisdictions in the EU member states, see F.C.
Mayer, ‘Multilevel Constitutional Jurisdiction’, in A. v. Bogdandy and J. Bast (eds.), Principles of
European Constitutional Law, 2nd edn. (Hart 2009) p. 399, 400 et seq.
9² Under Art. 44.3 of the Austrian Federal Constitutional Law any ‘total revision of the Federal
Constitution shall ... be submitted to a referendum by the entire nation, whereas any partial revi-
sion requires this only if one third of the members of the National Council or the Federal Council
so demands.’
112 Mattias Wendel EuConst 7 (2011)
official law gazette.93 Hence, in Austria an individual had no legal means of pre-
ventively challenging the Lisbon Treaty under the given procedural circumstances,
while in Germany individual complainants could attack the parliamentary act
approving the Lisbon Treaty before the German ratification was being completed.94
By order of 12 June 2010 the Austrian Constitutional Court also finally re-
jected an individual petition that had been filed after the coming into force of the
Lisbon Treaty. This time the petitioner was a group of deputies who had not
achieved the necessary majority in parliament to imperatively demand an objective
review of constitutionality.95 They therefore filed an individual petition. Under
Austrian constitutional law such a petition is declared admissible only if the peti-
tioner establishes a prima facie infringement of ‘personal rights’ that affects him
or her ‘directly’. The deputies claimed, inter alia, that their constitutional right to
participate in a national referendum was infringed and that the conferral of com-
petences to the European Union limited the constitutionally required contribution
of the deputies to the exercise of legislative powers as guaranteed in Article 24
(legislative power of parliament) and Article 26 § 1 (right to vote) of the Austrian
Federal Constitutional Law. However, the Constitutional Court found that the
petitioners did not sufficiently establish that there was an infringement on per-
sonal rights affecting them directly.96 A comparable criterion of being directly
affected is also required for the admissibility of constitutional complaints under
German constitutional law. But interestingly, in spite of these similarities, the
Austrian Court and the German Bundesverfassungsgericht took a completely dif-
ferent approach.
law, to participate in the work of the State and of local government, and to hold
a position in the civil service. (...)’
In its judgment of 7 April 2009, the Latvian Court declared the case admissible
on the basis of an alleged violation of Article 101 which, according to the Court,
protects the individual right to participate in a referendum as far as the latter is
provided for in the constitution or in another normative act.99 Two constitu-
tional provisions were claimed to require a national referendum in the present
context. The first provision was Article 68.4, according to which ‘substantial
changes’ regarding EU membership shall be decided by a national referendum if
at least one-half of the members of parliament so request. The second stipulation
was Article 77, which requires a referendum for the amendment of certain funda-
mental articles, such as the sovereignty-clause in Article 2.100 As the Constitu-
tional Court declared the case admissible on the basis of the alleged violation of
Article 101 in connection with these two provisions, it consequently limited its
scrutiny to the question of whether the Lisbon Treaty had been ratified in compli-
ance with the procedures established in the constitution.101 Article 68.4 did not
provoke major problems in this respect. Its wording alone indicates that the ques-
tion whether to submit ratification to a referendum or not lies within the sole
hands of parliament.102 In contrast, the question of whether the ratification of the
Lisbon Treaty touches upon the principle of sovereignty as enshrined in Article 2
and therefore requires a referendum under Article 77, required the Latvian Court
to present more detailed reasoning to demonstrate that it did not.103
But here the parallels between the two judicial bodies end.
As to the application of bridge-clauses, the French Conseil constitutionnel does
not demand a prior assent by the French parliament. Instead these clauses are one
reason for the Conseil constitutionnel to demand a constitutional amendment for
the ratification of the Lisbon Treaty.112 The constitutional authorisation which has
been introduced in the French constitution in the aftermath of the Lisbon decision
(former Article 88-1 § 2) and which allowed the ratification of the Lisbon Treaty
thus already encompassed and insofar anticipated all future applications of pas-
serelle-clauses. Therefore the French representative in the Council is entitled to
vote for such an application without being previously authorised by parliament
to do so. This entails important consequences for the judicial branch as well. As
there is no requirement of prior parliamentary assent, the future application of
passerelle-clauses cannot be subjected to constitutional review in France. In con-
trast, in Germany each application of a passerelle-clause can be challenged before
the Bundesverfassungsgericht, simply because the authorising parliamentary act can
be subjected to constitutional review.
According to the German court, the foundation of the requirement of the
parliament’s ‘positive’ involvement is parliament’s ‘responsibility for integration’
– which is in fact also a judicial responsibility.113 This applies to all forms of dy-
namic forms of development mentioned above.114
¹¹² French CC Constitutional Treaty, supra n. 12 at paras. 33-35 and French ConC Treaty of
Lisbon, supra n. 17, paras. 23 et seq. and 27.
¹¹³ See explicitly German BVerfG Treaty of Lisbon, supra n. 21 at para. 236 at the end.
¹¹4 In contrast, particularly Art. 352 TFEU does not seem to be a constitutional problem for the
French CC at all.
¹¹5 See Czech CC Treaty of Lisbon I, supra n. 19 at paras. 161-164, 172-175; Czech CC Treaty
of Lisbon II, supra n. 22 at para. 134; Latvian CC Treaty of Lisbon, supra n. 20, point 18.6; Hungar-
ian CC Treaty of Lisbon, supra n. 23, point IV.2.5 and Polish CT Treaty of Lisbon, supra n. 25.
Lisbon Before the Courts: Comparative Perspectives 117
will draft new legal acts. ... Accordingly, the Constitutional Court concludes that
Latvia will have the rights and the ability to block changes in the decision-making
procedure that are undesirable for Latvia and the Saeima will have the possibility to
express its opinion before changes come into force.116
Insofar as [Article 10.1] of the TEU provides that “The functioning of the Union
shall be founded on representative democracy”, that does not mean that only proc-
esses at the European level should ensure fulfilment of that principle. That article is
directed at processes both on the European and the domestic level, not only at the Euro-
pean Parliament, as stated by the German Constitutional Court in point 280 of its deci-
sion (...).
In other words, the democratic process on the Union and domestic levels mutually
supplement and are dependent on each other. (...)
For similar reasons, one cannot see conflict of Article 14.2 of the TEU, which gov-
erns the number of members of the European Parliament, with the principle of
equality (...). As pointed out above, the European Parliament is not the exclusive
source of democratic legitimacy for decisions adopted on the level of the European
Union. That is derived from a combination of structures existing both on the domestic
and on the European level, and one cannot insist on a requirement of absolute equality
among voters in the individual Member States.120
¹¹6 Latvian CC Treaty of Lisbon, supra n. 20, point 18.6 (emphasis added).
¹¹7 Czech CC Treaty of Lisbon I, supra n. 19 at para. 151 et seq.
¹¹8 Ibid., para. 173: ‘The Treaty of Lisbon transfers powers to bodies that have their own regu-
larly reviewed legitimacy, arising from general elections in the individual member states. Moreover,
the Treaty of Lisbon permits several ways of involving domestic parliaments (the possibility for a
parliament, or one of its chambers, to directly express its lack of consent, is one of the forms of participa-
tion by domestic parliaments)’ (emphasis added).
¹¹9 Czech CC Treaty of Lisbon II, supra n. 22 at para. 138 with reference to the opinion of former
A.G. Poiares Maduro of 26 March 2009, Case C-411/06, Commission v. Parliament and Council.
¹²0 Ibid., para. 137 et seq. (emphasis added).
118 Mattias Wendel EuConst 7 (2011)
The Czech Constitutional Court thus puts a certain degree of trust in the multi-
levelled structure of democracy in the European Union and particularly in the
ability of the European Parliament to provide for a genuine – albeit not exclusive
– link of democratic legitimacy, even despite the EP’s degressively proportional
composition. In addition, the Czech court highlights the concept of ‘pooled’
sovereignty.121
In contrast, the Bundesverfassungsgericht takes the view that the necessary degree
of democratic legitimacy of EU public authority can – at the moment – only
derive from the national ‘state people’ (Staatsvolk). As a consequence, the German
court needs to tie the application of the bridging-clauses and the other provisions
mentioned above to the prior and constitutive assent of the German parliament.
The autonomous democratic mechanisms and institutions on EU-level have, so
the argument goes, a complementary character at best, but not a constitutive one.
In so far as the people itself is not directly called upon to decide, democratic legitima-
tion can only be achieved by means of parliamentary responsibility. (...) In so far as the
Member States elaborate treaty law in such a way as to allow treaty amendment
without a ratification procedure solely or mainly by the institutions of the Union,
albeit under the requirement of unanimity, whilst preserving the principle of confer-
ral, a special responsibility is incumbent on the legislative bodies, in addition to the
Federal Government, within the context of participation which in Germany, has to
comply internally with the requirements under Article 23.1 of the Basic Law (re-
sponsibility for integration) and which may be invoked in any proceedings before the
Federal Constitutional Court. (...)
Measured against requirements in a constitutional state, even after the entry into
force of the Treaty of Lisbon, the European Union lacks a political decision-making
body created in equal elections by all citizens of the Union and with the ability to
uniformly represent the will of the people. (...) Even in the new wording of Article
14.2 Lisbon TEU, and contrary to the claim that Article 10.1 Lisbon TEU seems
to make according to its wording, the European Parliament is not a representative body
of a sovereign European people. This is reflected in the fact that it is designed as a
representation of peoples in the respective national contingents of Members, not as
a representation of Union citizens in unity without differentiation, according to the
principle of electoral equality. (...)
The deficit of European public authority that exists when measured against requirements
on democracy in states cannot be compensated for by other provisions of the Treaty of
Lisbon and, to that extent, it cannot be justified. (...).122
¹²¹ Ibid., para. 147 and Czech CC Treaty of Lisbon I, supra n. 19 at para. 104.
¹²² German BVerfG Treaty of Lisbon, supra n. 21 at paras. 236, 280 and 293 (emphasis added).
Lisbon Before the Courts: Comparative Perspectives 119
principle of democracy is the corner stone of the German Lisbon decision. It is the
substantial key argument for the German court to declare the case admissible on
the basis of an alleged infringement of the right to vote. Moreover, the principle
of democracy underlies and even predetermines the principle of sovereign state-
hood as developed in the Lisbon judgment.123 But above all, the principle of de-
mocracy is placed at the heart of Germany’s constitutional identity, for the right
to free and equal participation in public authority is, according to the Bundesver-
fassungsgericht, ‘enshrined in human dignity’ itself.124
The tragedy is that the Bundesverfassungsgericht’s conception of democracy is
existentially bound to the (pre-)existence of statehood and is blind to constitutive
forms of democratic legitimation within multi-levelled entities. The court thus
leaves the Germans with an astonishing binary choice: They may either remain
part of the so-called association of sovereign and ‘fully democratically’ (volldemo-
kratisch) organised states whose ‘peoples’ remain the only subjects of democratic
legitimation. Or they may participate in the creation of a European federal state,
which would require a change of the ‘subject of democratic legitimation’125 and
the superseding of one of Germany’s most vaunted post-war-inventions: the Basic
Law.126
If the Germans do not wish to give up their constitution – and who would be
surprised if they didn’t want to? –, the application of all forms of ‘dynamic treaty
provisions’ must be previously legitimised by the German parliament and remain
under the control of the Bundesverfassungsgericht. To frame it differently, as long
as the German ‘people’ does not opt for a European federal state, dynamic treaty
mechanisms shall not be too dynamic. Here it becomes clear that the specificities
of the Bundesverfassungsgericht´s conception of democracy entail direct conse-
quences for the future of European constitutional development.
¹²³ Ibid., para. 248: ‘The safeguarding of sovereignty, demanded by the principle of democracy in
the valid constitutional system ...’ (emphasis added).
¹²4 Ibid., para. 211.
¹²5 The BVerfG demands that democratic requirements in this new entity would have ‘to be
fully consistent with the requirements for the democratic legitimation of a union of rule organised
by a state’, cf. ibid., para. 263. However, it is not clear what the normative basis for this claim shall
be, as it can’t be the (then superseded) Basic Law.
¹²6 Ibid., paras. 179, 229, 263, 298 and 334. See also D. Halberstam and C. Möllers, supra
n. 88 at p. 1255 et seq.
¹²7 Cf. supra n. 21.
120 Mattias Wendel EuConst 7 (2011)
necessary for the application of dynamic treaty provisions. Examples for such a
requirement can also be found in section 6 of the British European Union Amend-
ment Act of 2008128 (to which the German court refers129) and in the new Article
23i of the Austrian Federal Constitutional Law, which even requires a qualified
majority in both houses of parliament. Also, the Czech legislator in 2009 passed
a statute establishing such requirements, not only with respect to the passerelle-
clauses but also with regard to Article 352 TFEU.130
So, much ado about nothing? Not really, because even if such requirements can
be found in several member states, the question still remains who took the decision
to initiate them. This leads to a second peculiarity. While in Germany it was a
court which forced the legislator to establish precisely defined rules to exercise
parliamentary responsibility for integration, in all other countries such a decision
was taken freely by the (constitutional) legislator. In particular the Czech Consti-
tutional Court left it to the legislative branch to decide how and to what extent
national parliaments’ rights are to be framed:
However, in this regard we cannot help but see that there are as yet no related provi-
sions in the legal order of the Czech Republic that would allow implementation of
the decision making procedures set forth in paragraphs six and seven of Art. 48 on
the domestic level. The absence of these procedures, in and of itself, does not affect
the question of whether the Treaty of Lisbon is constitutional, but because the Treaty of
Lisbon presumes the intervention of domestic parliaments, the government, as the
sponsor of the Treaty of Lisbon (...) should reflect that in a timely manner and ade-
quately, by proposing relevant procedures on the domestic level, and should ensure that
the Treaty is compatible and interconnected with the constitutional order of the Czech
Republic, not only in view of the participation of the parliament, but also in view of
the possibility of preliminary review of an amendment of the Treaties by the Con-
stitutional Court.131
In other words, the comparative perspective reveals how deeply the German court
mistrusts not only the EU political process, but also the political and parliamen-
tary process in Germany.132
¹²8 British European Union (Amendment) Act of 19 June 2008, available at <www.statutelaw.
gov.uk/content.aspx?activeTextDocId=3490003>.
¹²9 German BVerfG Treaty of Lisbon, supra n. 21, at para. 320.
¹³0 Act No. 162/2009.
¹³¹ Czech CC Treaty of Lisbon I, supra n. 19 at para. 165, confirmed in Czech CC Treaty of
Lisbon II, supra n. 22 at para. 134.
¹³² This is a line of argument which also characterised the European Arrest warrant case. It is
probably one of the great ironies that it is a constitutional court which obliges the national parlia-
ment to observe its responsibility for integration.
Lisbon Before the Courts: Comparative Perspectives 121
¹³³ See also the High Court for England and Wales (Queen’s Bench Division, Divisional Court),
R (on the application of Stuart Wheeler) v. Prime Minister and Foreign Secretary [2008] EWHC 1409
(Admin), which ‘found nothing in the claimant’s case to cast doubt on the lawfulness of ratifying
the Lisbon Treaty without a referendum’ (para. 59).
¹³4 Latvian CC Treaty of Lisbon, supra n. 20, points 18 and 19.
¹³5 Austrian CC Treaty of Lisbon II, supra n. 24, point II.3.1.
¹³6 The first referendum was held on 12 June 2008 and resulted in a negative outcome. The
second referendum was held on 2 October 2009 and resulted in a positive outcome. See on that
M. Cahill, ‘Ireland’s Constitutional Amendability and Europe’s Constitutional Ambition: the Lis-
bon Referendum in Context’, 9 GLJ (2008) p. 1191 et seq.
¹³7 Irish Supreme Court, Case 1986 No. 12036P, Crotty v. An Taoiseach [1987] IR 713.
¹³8 Now Art. 29.4 No. 5 of the Irish constitution. As to the Constitutional Treaty, see G Hogan,
‘Ratification of the European Constitution – Implications for Ireland’, in A. Albi and J. Ziller
(eds.), The European Constitution and National Constitutions (Kluwer 2007) p. 137 et seq.
¹³9 Art. 46.2 of the Irish constitution.
¹40 Whether an express constitutional authorisation is really necessary under the Crotty-doc-
trine is contentious, see, e.g., A. Maurer and B. Roth, ‘Warum Irland abstimmen muss(te) – oder
auch nicht’, available at <www.swp-berlin.org/common/get_document.php?asset_id=5575>.
122 Mattias Wendel EuConst 7 (2011)
tionary power of the President of the Republic. Unlike his predecessor Jacques
Chirac, who put the Constitutional Treaty to a popular vote,141 Nicolas Sarkozy
opted against a referendum in the case of the Lisbon Treaty.
In the Netherlands the referendum on the Constitutional Treaty was legally
speaking purely consultative.142 In its opinion on the mandate of the IGC in 2007,
the Dutch Council of State underlined that regarding the Lisbon Treaty a con-
sultative referendum was constitutionally admissible, but not required, neither by
constitution nor by the mere precedent of the Constitutional Treaty referendum.143
In Denmark the decision not to hold on the Lisbon Treaty was preceded by an
astonishing opinion of the Ministry of Justice. According to the wording of Arti-
cle 20 of the Danish constitution, which allows the ‘delegation’ of competences,
a referendum is required only if the specific majority of fifth-sixths of the members
of parliament is not achieved. However, in Denmark a constitutional practice has
evolved, according to which a referendum is generally held when Article 20 applies,
regardless of whether the qualified majority has been met or not.144 The Danish
Ministry of Justice took the view that, in contrast to the Constitutional Treaty, the
Lisbon Treaty would not entail a ‘delegation’ of competences in the sense of Arti-
cle 20 and thus would not require a (customary) referendum.145 This legal evalu-
ation is neither convincing nor consistent with the Ministry’s previous evaluation
¹4¹ The referendum concerning the Constitutional Treaty was appointed by presidential Decree
No. 2005-218 of 9 March 2005.
¹4² See L.F.M. Besselink, ‘Constitutional Referenda in the Netherlands: A Debate in the Mar-
gin’, 11 EJCL (May 2007) p. 1, 14 and id, ‘The Dutch Constitution, the European Constitution
and the Referendum in the Netherlands’, in A. Albi and J. Ziller (eds.), The European Constitution
and National Constitutions (Kluwer 2007) p. 113, 118.
¹4³ Dutch State Council Lisbon-Mandate, supra n. 27, point 4.2: ‘There is nothing in the Con-
stitution to prevent the legislator from holding such referendums on an ad hoc basis, provided that
it indicates that there is a special justification for departing from the self-contained arrangements
for approving treaties and provided that the referendum procedure is governed by an Act of Parlia-
ment. Mere precedent will not suffice. That would create a substantive basis for the referendum as
a structural instrument (in this case, for use when approving treaties) which would not be in keep-
ing with the self-contained arrangements in the Constitution.’ See on that J. Ziller, ‘The Law and
Politics of the Ratification of the Lisbon Treaty’, in S. Griller and J. Ziller (eds.), The Lisbon Treaty
(Springer 2008) p. 309, 317 et seq.
¹44 See H. Koch, ‘The Danish Constitutional Order’, in A.E. Kellermann et al. (ed.), EU-En-
largement – The Constitutional Impact at EU and National Level (TMC Asser Press 2001) p. 109,
111. Critically to this practise H. Rasmussen, ‘Denmark’s Waning Constitutionalism and Article 20
of the Constitution on Transfer of Sovereignty’, in A. Albi and J. Ziller (eds.), The European Consti-
tution and National Constitutions (Kluwer 2007) p. 149, 150.
¹45 Opinion of 4 Dec. 2007. In the aftermath of this opinion, on 11 Dec. 2007 the Danish
government took the decision to ratify the Lisbon Treaty according to the ordinary procedure under
Art. 19 of the Danish constitution. The approval of the Danish parliament followed on 24 April
2008.
Lisbon Before the Courts: Comparative Perspectives 123
of the Constitutional Treaty. It is clear that the political desire to avoid holding a
referendum determined the legal argument.
In summary, the ratification of the Lisbon Treaty shows that in almost all
member states a popular vote is not viewed as being constitutionally mandatory
for ratification, even in cases of fundamental treaty reform. Instead, in most con-
stitutional orders that allow a consultative or legally binding referendum, the final
decision as to whether to hold a referendum rests with the legislative or the ex-
ecutive branch.146 With the exception of Ireland, all countries in which a referen-
dum would have been constitutionally possible avoided this for obvious reasons.
¹46 See particularly Arts. 3a.2 of the Slovenian, 68.4 of the Latvian, 90.3 of the Polish and 10a.2
of the Czech constitution, allowing the national parliament to take a decision to substitute or com-
plement its own act of approval by a referendum. In France, according to Art. 88-5 of the constitu-
tion any bill authorizing the ratification of a treaty pertaining to the accession of a state to the EU
shall be submitted to referendum by the President of the Republic. But also here, by passing a mo-
tion adopted in identical terms in each house by a three-fifths majority, parliament may authorize
the passing of a bill according to the (parliamentary) constitutional amendment procedure.
¹47 See in particular French CC, Case No. 92-308 DC Maastricht I, decision of 9 April 1992.
124 Mattias Wendel EuConst 7 (2011)
(1), calls into question constitutionally guaranteed rights and freedoms (2) or af-
fects the ‘essential conditions of the exercise of national sovereignty’ (3).148 The
latter is the most important criterion in practice, as the judgments on the Consti-
tutional Treaty and the Lisbon Treaty show. Both treaties jeopardised these ‘es-
sential conditions’ and thus required a constitutional amendment. Although
Article 89.5 of the French constitution sets potential limits to constitutional
amendments,149 the Conseil constitutionnel has, until today, not relied on this
provision in order to establish constitutional limits to European integration. Hence,
Article 89.5 does not belong to the relevant norms of reference, neither in the
decision on the Constitutional Treaty nor in that on the Lisbon Treaty. Moreover,
the Conseil takes the general view that it is not authorised to review constitu-
tional amendments.150 The Conseil constitutionnel thus has been described aptly
as a pointsman (aiguilleur) which only indicates whether ratification requires
amendment of the constitution or not.151 A further example of the first category
is that a constitutional court accepts constitutional limits to the national integra-
¹48 Cf. French CC Constitutional Treaty, supra n. 12 at para. 7 and Treaty of Lisbon, supra n. 17,
para. 9.
¹49 According to Art. 89.5 of the French constitution, the ‘republican form of government shall
not be the object of any amendment’.
¹50 French CC, Case 2003-469 Decentralisation, decision of 26 March 2003, paras. 2 and 3.
That the Conseil constitutionnel shows extreme reluctance with regard to Art. 89.5 of the French
constitution is also illustrated by its Maastricht decisions. After the Conseil had ruled in a first deci-
sion that the ratification of the Maastricht Treaty required a prior constitutional amendment in
1992 (Case 92-308 DC Maastricht I, decision of 9 April 1992) it was asked to review the constitu-
tionality of the Maastricht Treaty a second time. The group of senators who introduced the second
proceeding was unsatisfied that the French constituent authority had not amended pre-existing
provisions, such as the sovereignty-clause under Art. 3, but had decided merely to supplement the
French constitution with several EU related provisions. In other words, the second proceeding
would have given the Conseil the opportunity to make its views on the constitutionality of the
constitutional amendment. However, the Conseil did not follow the argument of the applicants,
according to which the ratification of the Maastricht Treaty was still unconstitutional. Instead it
decided that ‘subject to the provisions governing the periods in which the Constitution cannot be
revised (Arts. 7 and 16 and the fourth paragraph of Art. 89) and to compliance with the fifth para-
graph of Art. 89 (‘The republican form of government shall not be the object of an amendment’),
the constituent authority is sovereign; it has the power to repeal, amend or amplify constitutional provi-
sions in such manner as it sees fit; there is accordingly no objection to insertion in the Constitution of new
provisions which derogate from a constitutional rule or principle; the derogation may be express or im-
plied’ (French CC, Case 92-312 DC Maastricht II, decision of 2 Sept. 1992, para. 19, emphasis
added). See on that J. Ziller, ‘Sovereignty in France: Getting Rid of the Mal de Bodin’, in
N. Walker (ed.), Sovereignty in Transition (Hart 2003) p. 261, 271 et seq. In its third Maastricht
decision the CC declared itself not competent to decide on the constitutionality of the law approv-
ing the ratification as this law had been subjected to a referendum and was thus a direct expression
of national sovereignty (‘expression directe de la souveraineté nationale’), French CC, Case 92-313
DC Maastricht III, decision of 23 Sept. 1992, para. 2.
¹5¹ L. Favoreu, La politique saisie par le droit (Economica 1988) p. 30.
Lisbon Before the Courts: Comparative Perspectives 125
tion clause, i.e., the clause allowing the conferral of competencies to the Euro-
pean Union, as long as such limits are not constitutionally inalienable. Examples
for such an approach are given by the Lisbon decisions of the Hungarian Consti-
tutional Court152 and the Polish Constitutional Tribunal153 as regards the integra-
tion clauses in both countries.
The most explicit example for the second category is given by the Lisbon judg-
ment of the Bundesverfassungsgericht . As already pointed out, the key argument
of this decision is the principle of democracy as protected in its essential content
by the so-called ‘eternity clause’ under Article 79.3 of the German Basic Law.154
Hence, the absolute constitutional limits to integration under the German Basic
Law begin particularly where the principle of democracy (and with it the right to
vote) would be eroded at its substantial core. In the Lisbon judgment the German
court identified five key areas within which the future conferral of competencies
to the EU would bear a high risk of violating this material core as protected by
the eternity clause:
This catalogue is spelled out in more detail in the following paragraphs of the
Lisbon judgment.157 In a remarkably apodictic way – which has been vividly
criticised158 – the Bundesverfassungsgericht places constitutional stop signs before
further conferrals of competences. We learn, for instance, that the task of securing
the individual’s livelihood is and must remain a ‘primary task’ of the member
states.159 The only reason why the right to mint and issue coins – which has also
been a classical state competence – does not figure in the court’s list is probably
the mere fact that this marque de souveraineté (Bodin)160 has already been conferred
to Union level.161
[T]he petitioners ask the Constitutional Court to set ‘substantive limits to the trans-
fer of powers’, and (...) attempt to formulate these themselves, evidently inspired by
the decision of the German Constitutional Court dated 30 June 2009 (...) which provides
such a catalogue in point 252 (...).
However, the Constitutional Court does not consider it possible, in view of the position
that it holds in the constitutional system of the Czech Republic, to create such a catalogue
of non-transferrable powers and authoritatively determine ‘substantive limits to the
transfer of powers’, as the petitioners request. It points out that it already stated [refer-
ence to Lisbon I] that ‘These limits should be left primarily to the legislature to specify,
because this is a priori a political question, which provides the legislature wide discretion’
[reference to Lisbon I, para 109]. Responsibility for these political decisions cannot be
transferred to the Constitutional Court; it can review them only at the point when they
have actually been made on the political level.
For the same reasons, the Constitutional Court does not feel authorised to formulate
in advance, in an abstract context, what is the precise content of Article 1.1 of the
Constitution, as requested by the petitioners, supported by the president, who wel-
comes the attempt “in a final list to define the elements of the ‘material core’ of the
constitutional order, or more precisely, of a sovereign democratic state governed by
the rule of law” (...).
(...) This does not involve arbitrariness, but, on the contrary, restraint and judicial
minimalism, which is perceived as a means of limiting the judicial power in favour of
political processes, and which outweighs the requirement of absolute legal certainty
(...). The attempt to define the term ‘sovereign, unitary and democratic state governed
by the rule of law, founded on respect for the rights and freedoms of the man and
of citizens’ once and for all (as the petitioners, supported by the president, request)
would, in contrast, be seen as an expression of judicial activism, which is, incidentally,
consistently criticized by certain other political figures.171
The reasoning of the Czech court raises questions that go beyond the sole aspect
of constitutional limits to European integration as it addresses the more funda-
¹69 For the historic background of the German eternity clause, see M. Herdegen, ‘Article 79’, in
T. Maunz and G. Dürig (eds.), Grundgesetz – Kommentar, 59th edn. (loose-leaf ) (Beck 2010) paras.
63 et seq.
¹70 According to Art. 9.2 of the Czech constitution, the ‘substantive requisites of the demo-
cratic, law-abiding State may not be amended.’ According to Art. 1.1, the ‘Czech Republic is a
sovereign, unitary and democratic, law-abiding State, based on respect for the rights and freedoms
of man and citizen.’
¹7¹ Czech CC Treaty of Lisbon II, supra n. 22 at paras. 110-113 (emphasis added).
128 Mattias Wendel EuConst 7 (2011)
mental question regarding the relationship between law and the political. To frame
it differently, at the heart of its reasoning, the Czech court raises the question of
institutional choice in the sense of to what extent a court should (re-)write the
constitution by means of interpretation and where it should leave the decision to
the legislator. The answer given is clearly in favour of the political process. Does
the second Lisbon judgment of the Czech court bear the hand-writing of those
authors who had underlined the limits of judicial reasoning on earlier occasions,
particularly within the context of the European Arrest Warrant?172
Anyway, as regards the determination of constitutional limits to further steps
of European integration, the comparative analysis reveals that the Conseil consti-
tutionnel and the Czech Constitutional Court throw the ball back into the po-
litical arena.173 In contrast, the Bundesverfassungsgericht claims to be competent to
determine limits to European integration which can only be overcome by super-
seding the German Basic Law. While the Conseil constitutionnel and the Czech
Constitutional Court stay within the existing constitutional system by referring
to the legislator or the constituent authority, the Bundesverfassungsgericht tends to
transcend the constitutional order (by which it is itself constituted) when it refers
to a pre-constitutional right to give oneself a constitution.174
¹7² See in particular J. Komárek, supra n. 11 at p. 38 et seq. within the context of the European
Arrest Warrant cases.
¹7³ This does not mean, however, that the Czech CC would pass the buck to the legislator in all
cases. But it holds that the ‘interference by the Constitutional Court should come into considera-
tion as ultima ratio’ only, see Czech CC Treaty of Lisbon I, supra n. 19 at para. 109.
¹74 See again German BVerfG Treaty of Lisbon, supra n. 21, para. 179.
¹75 ‘Ultra vires act’ is here understood in the narrower sense of the word, in contrast to the
wider concept which covers also infringements of other principles of EU law than only the principle
Lisbon Before the Courts: Comparative Perspectives 129
of conferral, such as the fundamental rights for example. For the different notions, see F.C. Mayer,
Kompetenzüberschreitung und Letztentscheidung (C.H. Beck 2000) p. 24 et seq.
¹76 German BVerfG Maastricht, supra n. 74 at p. 187 et seq. The claim to exercise an ultra vires
review could already be identified previously in Case 2 BvR 255/69 Lütticke, order of 9 June 1971,
BVerfGE 31, 145, 174 and Case 2 BvR 687/85 Kloppenburg, order of 8 April 1987, BVerfGE 75,
223, 235.
¹77 This cannot be dealt with in detail here.
¹78 Ibid., para. 241.
¹79 At the moment there is no political majority which would opt in favour of such a solution,
which might even, for good reasons, give impetus to an infringement procedure under Art. 258
TFEU (ex-Art. 226 TEC).
¹80 German BVerfG Treaty of Lisbon, supra n. 21 at para. 240.
¹8¹ ECJ, Case C-144/04 Mangold, judgment of 22 Nov. 2005.
¹8² German BVerfG Honeywell, supra n. 16 at para. 60.
¹8³ Ibid., Para 61.
130 Mattias Wendel EuConst 7 (2011)
Court of Justice had a ‘right to tolerance of error.’184 The question of whether the
Court of Justice transgressed the Union’s competences in its famous Mangold
judgment, was expressly left open by the German court,185 as it took the view that,
in any case, the second requirement of the double test was not fulfilled: ‘neither a
new field of competences was created for the Union to the detriment of the Mem-
ber States, nor was an existing competence expanded with the weight of a new
establishment.’
This restrictive approach should, however, not overshadow the fact that the Hon-
eywell case marks the first time that a national constitutional court actually under-
took an ultra vires review,186 even if the German court rejected the constitutional
complaint as unfounded.
The ultra vires claim is a prominent example for cross-border migration187 of
constitutional ideas. Originally developed by the Bundesverfassungsgericht, it was
taken up by the Danish Highest Court in its Maastricht decision,188 the Polish
Constitutional Tribunal in its decision on the Accession Treaty189 and also the
Czech Constitutional Court in its Lisbon decisions.190 The Polish and the Czech
decisions even drew explicitly on the German Maastricht decision for inspiration.191
Although not being equally sophisticated in terms of dogmatics, the jurispru-
dence of the Danish and the Czech courts principally correspond to the restrictive
course of the Bundesverfassungsgericht. Both courts underline that ultra vires review
must be exercised only in exceptional circumstances.192 A similar conclusion can
Identity review
The picture is more heterogeneous in relation to claims to review whether an act
of EU law violates the national constitutional identity. This begins with the term
‘identity’. Whereas the concept of ‘ultra vires act’ can be defined in a relatively
clear manner, the notion of identity remains obscure.195 But although (or just
because?) it runs risk of drifting away in the cloudy spheres of nebulosity, it nev-
ertheless seems to have the potential of becoming a universal term196 of European
constitutional law.
The notion of ‘constitutional identity’ is used by several national supreme ju-
risdictions as a synonym for constitutional core principles protected against the
primacy of EU law.197 While this alone is hardly revolutionary,198 the concept of
constitutional identity has recently turned out to be a genuine phenomenon of
multilevel-constitutionalism. Some of the courts no longer rely exclusively on
national constitutional law, but also on the new framed identity-clause in EU law
(Article 4.2 TEU) in order to justify the protection of the said core principles.
The first decision interesting in this respect is the declaration of the Spanish
Constitutional Tribunal on the Constitutional Treaty. For the Spanish Tribunal,
the identity clause (formerly planned as Article I-5 of the Constitutional Treaty)
is one of the key arguments to assume that an act of EU law which violates the
fundamental principles of the Spanish constitution would automatically also
constitute an infringement of European Union law and would therefore be sanc-
tioned already by Union law itself.199 To frame it differently, the Spanish Tribunal
sees the identity-clause as one of several ‘inbuilt breaks’ of the Treaties which ensure
that the Tribunal will never get into the position to have to declare an act of EU
law inapplicable in Spain, because before it reaches the Tribunal the infringement
will already have been sanctioned on the Union level.200 This is why the Spanish
Constitutional Tribunal can refer its own review power into the realm of the hy-
pothetical.
The identity-clause is also highlighted by the French Conseil constitutionnel in
its decision on the Constitutional Treaty. The Conseil concluded from a combined
reading of the (formerly planned) primacy clause and the identity clause that the
principle of primacy is, on the one hand, acknowledged, but, on the other hand,
also potentially limited. According to the Conseil, the Constitutional Treaty, and
particularly the close proximity of Articles 1-5 and 1-6 thereof, show that it in no
way modifies the nature of the European Union, nor the scope of the principle of
the primacy of Union law as duly acknowledged by Article 88-1 of the Constitution,
and confirmed by the Constitutional Council in its decisions.201
Among the jurisprudence referred to, a decision stands out in which the Conseil
constitutionnel stated that the obligation to transpose a directive follows not only
from EU law but also from French constitutional law (Article 88-1) and non-
transposition would only be possible on the grounds of an expressly contrary
provision of the French constitution.202 This constitutional entrenchment of the
obligation to transpose a directive allows the Conseil to sanction the enforcement
of EU law by means of French constitutional law and simultaneously to limit this
obligation by colliding constitutional provisions. In a decision of 2006 the Conseil
constitutionnel specified these potential limits as those regarding French ‘constitu-
tional identity’. According to the Conseil constitutionnel, the ‘the transposition of
¹99 Spanish CT Constitutional Treaty, supra n. 8, point II-3. In this sense, see the case note of
F. Castillo de la Torre, 42 CMLR (2005) p. 1169, 1195 et seq. and A.C. Becker, ‘Vorrang versus
Vorherrschaft’, EuR (2005) p. 353, 355.
²00 Cf. F. Castillo de la Torre, 42 CMLR (2005) p. 1169, 1193 and 1201.
²0¹ French CC Constitutional Treaty, supra n. 12 at para. 13.
²0² French CC E-Commerce, supra n. 13 at para 7. See also Case No. 2004-498 DC Bioethics,
decision of 29 July 2004, para 4. This reasoning has been aptly described as a legal osmosis, cf.
F. Chaltiel, ‘Constitution française, constitution européenne, vers l’osmose des ordres juridiques?’,
488 RMC (2005) p. 280 et seq.
Lisbon Before the Courts: Comparative Perspectives 133
While it is not clear what exactly falls under the ‘constitutional identity’ of France
– one could argue that this concept covers only those principles specific to the
French constitutional order, such as the principle of secularism –204it is definite
that the constitutional identity in the jurisprudence of the Conseil constitutionnel
does not constitute an inalienable limit to European integration. Instead, the final
decision whether or not infringement of French constitutional identity should be
allowed rests with the constituting power.
There are several differences between the approach of the French Conseil con-
stitutionnel and the German Bundesverfassungsgericht as regards the concept of
constitutional identity.205 But the most important is the following. While in Ger-
many the Bundesverfassungsgericht grants the constitutional identity absolute
protection under the eternity clause, in France the constituent authority maintains
the right to adapt the French constitution. If the French Conseil constitutionnel
ever held that the implementation of a directive would infringe the constitu-
tional identity of France, then the constitution could be revised.
In Germany, on the contrary, the notion of constitutional identity is bound to
Article 79.3 of the Basic Law, which shields the substantial core of the constitution
even against a revision. On this basis the Bundesverfassungsgericht claims to be
competent to review whether an act of EU law infringes Germany’s constitu-
tional identity and is thus inapplicable within Germany. The court holds that
otherwise
²07 Ibid.
²08 German BVerfG Honeywell, supra n. 16 at para. 59: ‘According to the legal system of the
Federal Republic of Germany, the primacy of application of Union law is to be recognised and it is
to be guaranteed that the control powers which are constitutionally reserved for the Federal Con-
stitutional Court are only exercised in a manner that is reserved and open towards European law.’
²09 German BVerfG, Case 2 BvL 1/97 Banana-Market, order of 7 June 2000, BVerfGE 102,
147 et seq.
²¹0 In Case 1 BvR 256/08 et al. Data retention, judgment of 2 March 2010, para. 218 the Ger-
man BVerfG stated: ‘It is part of the constitutional identity of the Federal Republic of Germany
that the citizens’ enjoyment of freedom may not be totally recorded and registered, and the Federal
Republic must endeavour to preserve this in European and international connections.’ The BVerfG
here referred explicitly to the identity control under para. 240 of the Lisbon judgment. In its Lisbon
judgment the BVerfG also identified the principle of nulla poena sine culpa as being an integral part
of the German constitutional identity, German BVerfG Treaty of Lisbon, supra n. 21 at para. 364.
²¹¹ See Mayer, supra n. 31, 39 et seq. concluding that in some way any problem of protection of
fundamental rights could thus be treated as a problem of constitutional identity too.
²¹² In this sense Thym, supra n. 38 at p. 1807.
Lisbon Before the Courts: Comparative Perspectives 135
²¹³ In legal terms, permeability can be defined as the capacity of a given legal order to limit its
own claim of normative exclusivity in order to enable legal rules or principles which emanate from
a formally separated legal order to integrate. See in detail Wendel, supra n. 3, chs. 1 and 13.
²¹4 See also A.G. M. Poiares Maduro, Case C-213/07 Michaniki, opinion of 28 Oct. 2008,
para. 32 et seq.
²¹5 The ECJ was, under the former Art. 46 of the TEU-Nice, not competent to interpret the
identity-clause under the former Art. 6.3 TEU-Nice.
²¹6 CONV 375/1/02 REV 1, p. 11: ‘In the latter respect it was noted that the provision was not
a derogation clause. The Member States will remain under a duty to respect the provisions of the
Treaties. ... Were the Court of Justice to be given power with respect to such article in a future
“basic treaty of constitutional significance”, the Court could be the ultimate interpreter of the pro-
vision if the political institutions went beyond a reasonable margin of appreciation.’
²¹7 See also F. Castillo de la Torre, 42 CMLR (2005) p. 1169, 1201.
136 Mattias Wendel EuConst 7 (2011)
high. References can be found chronologically in the decisions of the Czech Con-
stitutional Court, the German Bundesverfassungsgericht, the Hungarian Constitu-
tional Court and the Polish Constitutional Tribunal. Most of these references are
punctual affirmations used to support a specific argument as far as it is congruent
with the approach taken by another court. These references do not imply that the
judgments referred to serve as a normative basis, but rather reflect a comparative
‘inspiration’ as the Czech Constitutional Court has called it. The possibility of
being inspired in this way is increased by the fact that the supreme jurisdictions
show more and more tendency to publish their ‘European’ judgments also in
English translations.223
However, particularly the Czech Constitutional Court has shown that judicial
dialogue on horizontal level can involve critical comparative reasoning as well. Its
second Lisbon decision is a clear signal that the interaction and mutual influence
of national jurisprudence does not necessarily lead to the reception of a specific
judgment in the jurisprudence of other courts, but may in fact evoke express rejec-
tion. By objecting openly to some of the key arguments of its German counterpart,
the Czech Court in its second Lisbon judgment disproved the commonly expressed
idea that constitutional courts of Eastern and Central European countries stick to
the Bundesverfassungsgericht as a sort of archetype of constitutional court.
Does this contravene the idea of a common European constitutional law? No,
on the contrary. With its second Lisbon decision, the Czech court in fact demon-
strated the dialectical prospects of comparative reasoning within the multi-levelled
cooperation of European constitutional courts.224 Its assessment of the German
Lisbon decision should be understood as a constructive impulse that may even
foster the debate. The Czech Constitutional Court examined the German decision
intensely and came to the conclusion that some of the central arguments and as-
sumptions of this decision – particularly those regarding the principle of sover-
eignty, the European Parliament and the judicial handling of the constitutional
eternity clause – were not sufficiently convincing or transferable to be taken up
within the framework of the Czech constitutional order. In doing so, the Czech
Constitutional Court itself made an important contribution to the discussion
about the scope and content of a common European constitutional law. Com-
parative dialectics between national constitutional courts in Europe have reached
a new level of quality.
²²³ The German BVerfG issued an English translation for the first time in the European Arrest
Warrant case. In the Lisbon- and Honeywell decisions a translation was already available the day the
decision was published.
²²4 See A. Voßkuhle, supra n. 35.