Humboldt Rede zu Europa on Lisbon Verdict
On 12 May 2000, the then Minister of Foreign Affairs Joschka Fischer was invited to give a speech on his vision for Europe at the Humboldt Universität zu Berlin.
His thoughts were well received in Germany and abroad. The “Humboldt-Reden zu Europa” then became a regular format at the university’s Walter-Hallstein Institut für Europäisches Verfassungsrecht (Walter-Hallstein Institute for European Constitutional Law).
On 13 January 2010, Carl Otto Lenz, a law professor and former advocate general at the European Court of Justice, came to dissect the June 2009 verdict of the German Constitutional Court (Bundesverfassungsgericht) on the Treaty of Lisbon. (Read the full verdict here)
The Bundesverfassungsgericht basically concluded that the Treaty of Lisbon was compatible with the German constitution (Grundgesetz). But it demanded the rights of the German legislative bodies to be strengthened. And the court set the process of European integration a clear limit by saying that under the Grundgesetz it would not be possible for Germany to be a member of a union that develops towards the “United States of Europe”.
Over the last months the verdict has been criticized by many legal experts for its – compared to the scope of its content and the impact it might have on Germany’s European policy – poor line of argumentation. Otto Lenz picked up on some of those aspects.
But his most interesting thought in my view was when he spoke about the way in which the judges misinterpreted what he believed was the “spirit” of the Grundgesetz. Born in 1930 and just leaving grammar school to study law when the Grundgesetz was drafted in the late 1940s, Lenz pointed out that in his reading and experience, the fathers and mothers of the Grundgesetz indeed did NOT deny the possibility for Germany to become part of an entity like the “United States of Europe”. At least they did not decide to write a limit into the constitution, as the Bundesverfassungsgericht now suggests. “Das steht da nicht drin” (”This is nowhere written in the text”), Lenz said. In his view the court’s line of argumentation was not only poor but also anti-historical.
Christian Tomuschat, a professor emeritus of constitutional law, supported Lenz’s argument and made another point that he believed was problematic: None of the judges had articulated a dissenting opinion. This usually is quite a common practice. In his view, the fact that the constitutional court’s verdict despite its argumentative weaknesses appears unchallenged so far gives it a gravitas that might influence the way the EU is seen in Germany in the years to come.
I agree that it is indeed quite likely that the verdict, despite the criticism by legal experts, will be as formative as previous verdicts on the European Union (e.g. the Treaty of Maastricht verdict).
The Spanish Foreign Minister Miguel Angel Moratinos will be the next in the row: On his visit to Berlin on Monday 18 January 2010 he will speak at Humboldt Universität on the Spanish EU Presidency.
Hopefully he will have more insightful things to say than the Spanish Ambassador to Germany, whose room for manoeuver was rather limited in a recent speech at the Ministry of Finance. The setting however was promising, as Prime Minister Zapatero the week before had shaken up both the German Ministry of the Economics and the Ministry of Finance with a suggestion to make the Lisbon Strategy’s targets “more binding”.
The audience was asking for a clarification, but was asked for patience. Answers will be due fairly soon: In March, the heads of state and government will convene for their annual spring summit. By then, the Lisbon Strategy 2020 will have to be hammered out.