Judgment of 30 June 2009

R e a s o n s :

A.

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The subject of the applications in Organstreit proceedings and the constitutional complaints that have been combined for joint decision is the ratification of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community of 13 December 2007 (OJ C 306/1). The proceedings concern the German Act of Approval of the Treaty of Lisbon and – in part – the German accompanying acts: the Act Amending the Basic Law (Articles 23, 45 and 93) (Gesetz zur Änderung des Grundgesetzes <Artikel 23, 45 und 93>), which has been promulgated, but has not yet entered into force, and the Act Strengthening the Rights of the Bundestag and of the Bundesrat in Matters Concerning the European Union (Gesetz über die Ausweitung und Stärkung der Rechte des Bundestages und des Bundesrates in Angelegenheiten der Europäischen Union, Strengthening Act), which has been approved by Parliament, but has not yet been promulgated or entered into force.

I.

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1. Like the Single European Act and the Treaties of Maastricht, Amsterdam and Nice, the Treaty of Lisbon is an international treaty amending the EU’s Treaty foundations. Like the Treaties of Amsterdam and Nice, it is based on Art. 38 of the Treaty on European Union (TEU) of 7 February 1992 (OJ C 191/1; cf. OJ 2002 C 325/5 for the current, consolidated version); this means that it was established in accordance with the amendment procedure provided for in the Treaty of Maastricht. Unlike the Single European Act and the Treaties of Amsterdam and Nice, the Treaty of Lisbon provides for fundamental changes in the existing Treaty system. It abolishes the pillar system of the European Union and gives the European Union formal legal personality. In terms of its significance for the development of the European Union, the Lisbon Treaty is therefore similar to the Maastricht Treaty.

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2. The Lisbon Treaty replaces the Treaty establishing a Constitution for Europe (Constitutional Treaty) of 29 October 2004 (OJ C 310/1). While the Lisbon Treaty adopts large parts of the contents of the Constitutional Treaty, there are certain differences.

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a) aa) With the entry into force of the Treaty establishing the European Coal and Steel Community concluded in Paris in 1951 (Federal Law Gazette, Bundesgesetzblatt – BGBl 1952 II p. 445), the process of European integration was set in motion.

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The European idea of political unification of Europe gained considerable momentum after 1945 ([…]). Efforts were directed towards the foundation of a United States of Europe and the formation of a European nation. A constitution establishing a European federation was envisaged. […]

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bb) From the outset, the idea of adopting a constitution for a United States of Europe faced opposition from strong nationalist tendencies that were focused on the necessary reconstruction and thus directed inwards. Yet there were also strong counterveiling political imperatives in the form of a common foreign and defence policy in light of the risks posed by the Cold War. In particular, the United States of America, as the protector of Western Europe, pressed Europe to make a significant contribution to defence, which made it seem advisable to look for ways to a controlled German rearmament within the framework of an alliance. As a result European integration began with a focus on the coal and steel industries, due to their significance for both the economy and defence at the time. A European defence community was also established, which created a European defence force with significant participation from France and Germany. However, the Treaty establishing the European Defence Community, negotiated at the same time as the Treaty establishing the European Coal and Steel Community and which provided for an integration of security policy, failed to obtain ratification in the French National Assembly ([…]). The political union that had initially been part of the discussion met with failure during the negotiation stage and was postponed indefinitely. The rejection of the European Defence Community and the failure of the European Political Community clearly demonstrated that a European federation could not be realised directly.

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cc) Thus, at first, the economic integration of the European Coal and Steel Community that had been nonetheless initiated was the only specific step towards putting the vision of a united Europe into practice. The roundabout approach to political integration via the linking and communitarisation of economic policy, which became necessary due to persistent nationalist forces, shaped the character of European integration over the following decades. Through far-reaching economic integration and a common market, political communitarisation was to be brought about as a necessary practical consequence. Trade and economic conditions were to be created that would make a political union, including in terms of foreign and security policy, appear to be the only logical next step ([…]). This functional approach was the basis for the Treaties of Rome concluded in 1957 – the Treaty establishing the European Atomic Energy Community (BGBl 1957 II p. 753) and the Treaty establishing the European Economic Community (EEC Treaty); (BGBl 1957 II p. 766; cf. OJ 2002 C 325/1 for the current, consolidated version of the Treaty establishing the European Community <EC Treaty> OJ 2002 C 325/1). In the following decades, these Treaties were gradually developed and the institutions based thereon were shaped to a certain extent into state-like structures. The so-called Direct Elections Act paved the way for the first direct elections to the European Parliament in 1979 (Act concerning the election of representatives of the European Parliament by direct universal suffrage, Council decision of 20 September 1976 <BGBl 1977 II S. 733>, last amended by Council decision of 25 June and 23 September 2002 <BGBl 2003 II p. 810>).

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dd) The Single European Act of 28 February 1986 (OJ 1987 L 169/1) was the first major reform of the Treaties after the technical Merger Treaty of 1965 (OJ 1967 L 152/1) and the amendments to the financial provisions of the Treaties in the 1970s (OJ 1971 L 2/1 and OJ 1977 L 359/1). The Single European Act demonstrated a clear intent to resume the pursuit of the original objective of a European political union. It brought about an increase in qualified majority voting in the Council, an expansion of the powers of the European Parliament as a result of the cooperation procedure, the introduction of European Political Co-operation based on an intergovernmental process, and formalised the European Council as an institution defining the general political directions and priorities (‘impetus’ within the meaning of Art. 4 TEU; […]).

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The Treaty on European Union (Treaty of Maastricht) of 7 February 1992 (OJ C 191/1) constituted a fundamental development of the Community Treaties. It was designed to mark ‘a new stage in the process of creating an ever closer union among the peoples of Europe’ (Art. 1(2) TEU; cf. also Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 89, 155 <158 ff.>). The Treaty established the European Union (EU). Its foundations are the former three Communities, which were reduced to two Communities following the expiry of the Treaty establishing the European Coal and Steel Community. They are complemented by two forms of intergovernmental cooperation: the common foreign and security policy (CFSP) and cooperation in the area of justice and home affairs (known as the ‘three pillars’). The European Economic Community was renamed the European Community (EC). The Treaty of Maastricht also introduced the principle of subsidiarity, established EU citizenship and created the economic and monetary union; it granted new powers to the European Communities (education, culture, health, consumer protection, trans-European networks) and expanded the powers of the European Parliament by introducing the co-decision procedure for several areas of law-making. Under this procedure, no secondary legal act can be adopted without the consent of the European Parliament. The Treaty of Maastricht also provided for a revision of the Treaties with regard to the institutional architecture (Art. N(2) Treaty of Maastricht), which appeared increasingly to be urgently needed given the political signs in favour of enlargement of the European Union. The composition and functioning of European institutions had hardly changed since the 1950s, even though the number of Member States had increased from six to twelve and the European Union had taken on considerably more tasks than the European Communities had at the start of European integration.

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The Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts (Treaty of Amsterdam) of 2 October 1997 (OJ C 340/1) in turn expanded the powers of the European Union and the European Communities, for instance with regard to a common employment policy. It integrated matters such as asylum, immigration, visas and judicial cooperation in civil matters, which until that point had been the subject of intergovernmental cooperation, into the scope of application of the supranational Treaty establishing the European Community and opened up the possibility of enhanced cooperation between certain Member States. Moreover, the Treaty of Amsterdam created the post of High Representative for the Common Foreign and Security Policy, streamlined the co-decision procedure and strengthened the European Parliament’s right of scrutiny vis-à-vis the Commission. However, the Treaty left open a number of institutional questions relating to enlargement of the EU, including the size of its institutions, the distribution of seats and the scope of majority decisions.

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Thus, even as the Treaty of Amsterdam was concluded and entered into force, a further amending Treaty was deemed necessary. This was adopted as the Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts (Treaty of Nice) of 26 February 2001 (OJ C 80/1). It expanded the number of matters subject to qualified majority voting in the Council and adapted the composition of the Commission, the number of deputies in the European Parliament and the weighting of votes in the Council in light of the political decision in favour of an enlargement of the European Union with up to ten states from Eastern and Southern Europe. Further, government representatives agreed to a rule that Member States adopting a decision in the Council must represent at least 62% of the population of the European Union. In addition, the Intergovernmental Conference of Nice also saw the Charter of Fundamental Rights of the European Union (‘the Charter’, OJ 2000 C 364/1), drawn up by a Convention, solemnly proclaimed as a political declaration by the European Parliament, the Council and the Commission, without the Charter becoming part of the Treaty of Nice.

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b) aa) When it became clear that the Treaty of Nice would only serve to implement those changes to the institutional structure of the EU that had been deemed necessary, the question of re-establishing the project of a European Constitution that had failed in the 1950s was raised. German Foreign Minister Fischer proposed a European Constitution ([…]), sparking a far-reaching debate on the issue ([…]). While the Intergovernmental Conference of Nice included the project of a European Constitution in its Declaration No. 23 on the future of the Union (OJ 2001 C 80/85), it expressly wanted only to continue the EU’s institutional reform. The Laeken Declaration on the future of the European Union of 15 December 2001 (Bulletin EU 12-2001, I.27 Annex I>) set out four reform objectives:

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- First: ‘A better division and definition of competence in the European Union’ – this mainly concerned more transparency in the division of competence between the EU and the Member States and a potential clarification of the principle of subsidiarity; moreover, it was to be considered which new competences should be assigned to the EU, but also which EU competences should be left to the Member States in the future.

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- Second: ‘Simplification of the Union’s instruments’ – in this regard, it was to be considered whether a distinction should be made between legislative and executive measures and whether the number of legislative instruments should be reduced.

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- Third: ‘More democracy, transparency and efficiency in the European Union’ – this objective concerned comprehensive organisational and procedural issues of the EU’s system of institutions and the role of national Parliaments.

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- Fourth: ‘Towards a Constitution for European citizens’ – this revolved around the possibilities of a reorganisation of the Treaties, inclusion of the Charter of Fundamental Rights into the basic Treaty and adoption of a constitutional text in the European Union.

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The third objective mainly addressed the question of how democratic legitimacy and transparency of existing institutions could be strengthened, and how the President of the Commission should be appointed: by the European Council, by the European Parliament or in a direct election by the citizens? The Laeken Declaration raised the question of whether and how the composition and functioning of the European Parliament should be changed and whether the role of the Council should be changed.

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bb) With the Laeken Declaration, the European Council convened a Convention to draw up a constitutional text ([…]). The Convention, which was to involve the accession candidate countries, was to examine the four reform objectives. The Constitutional Treaty drawn up by the Convention and revised by the Intergovernmental Conference included far-reaching changes, but no comprehensive revision of the Treaties. It envisaged the combination of the Treaty on European Union and the Treaty establishing the European Community into one single Treaty, the dissolution of the pillar structure and legal personality for the European Union. The precedence of application of Community law over national law, which until then was based on the case-law of the Court of Justice of the European Communities, was to be enshrined in the Constitutional Treaty, and the symbols of the European Union – its flag, anthem, motto, currency and official Europe Day – were to be determined for the first time. Other essential changes included:

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- the inclusion of the Charter of Fundamental Rights into the Constitutional Treaty,

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- the categorisation and classification of the competences of the EU,

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- the expansion of the institutions of the EU, especially by creating the position of President of the European Council and EU Minister for Foreign Affairs,

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- the introduction of the double majority rule for voting in the Council,

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- a new type of EU legal instruments with terms such as ‘law’ and ‘framework law’,

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- the introduction of a European citizens’ initiative,

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- the creation of a neighbourhood policy,

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- the creation of a right to leave the EU for the Member States,

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- differing and simplified amendment procedures for individual parts and aspects of the Constitutional Treaty and

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- the involvement of national Parliaments in the legislative process to ensure compliance with the principle of subsidiarity in the form of an early warning system and an action on grounds of infringement of the principle of subsidiarity.

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Following a rejection of the Constitutional Treaty in referendums held in France and the Netherlands on 29 May and 1 June 2005 respectively, the European Council decided to hold a ‘period of reflection’. The Member States that had not yet ratified the Constitutional Treaty were to be permitted the opportunity to ratify after a thorough public debate without time pressure or to postpone ratification (Declaration by the Heads of State or Government of the Member States of the European Union on the ratification of the Treaty establishing a Constitution for Europe <European Council, 16 and 17 June 2005>, Bulletin EU 6-2005, I.30). Despite this, the process of ratification could not be restarted.

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c) In the Berlin Declaration of 25 March 2007 on the occasion of the 50th anniversary of the signature of the Treaties of Rome (Bulletin EU 3-2007, II.1), the Member States decided to launch a new Reform Treaty ([…]). On 22 June 2007, the Brussels European Council conferred a mandate to an Intergovernmental Conference to draw up a Reform Treaty amending the existing Treaties (Presidency Conclusions of the Brussels European Council on 21 and 22 June 2007, I.37 <Annex I>).

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The mandate for the Intergovernmental Conference differed from previous mandates in that the European Council specified the shape and contents of the new Treaty text almost in its entirety, in some areas even down to the exact wording (cf. the linguistically revised version of the mandate in Council document 11218/07, Annex). The European Council based its specifications on the Constitutional Treaty, with the aim of incorporating as much of its substance as possible into the new Reform Treaty. On 13 December 2007, this Reform Treaty was signed as the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community of 13 December 2007 (Treaty of Lisbon).

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3. a) The Preamble to the Treaty of Lisbon does not address the failed Constitutional Treaty and instead directly links the Treaty of Lisbon to the Treaties of Amsterdam and Nice. It reiterates the objective of the Intergovernmental Conference’s mandate – enhancing the efficiency and democratic legitimacy of the Union, as well as the coherence of its action – but, unlike the mandate, no longer emphasises the coherence of its external action. While all previous amending Treaties served to enhance the efficiency and coherence of the European Communities or the European Union, the Treaty of Lisbon for the first time expressly pursues the aim of enhancing the EU’s democratic legitimacy ([…]).

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In contrast to the Constitutional Treaty, the Treaty of Lisbon expressly abandons the constitutional concept, ‘which consisted in repealing all existing Treaties and replacing them by a single text called Constitution’ (Council document 11218/07, Annex, para. 1). It only amends the Treaties, with the terms underlying the amended Treaties also reflecting the abandonment of the constitutional concept. Terminology usually used at state level is set aside. The expression ‘Constitution’ is not used ([…]), the ‘Minister for Foreign Affairs’ becomes the ‘High Representative for Foreign Affairs and Security Policy’, and the terms ‘law’ and ‘framework law’ are not retained, while the less symbolic term ‘decision’ remains. The co-decision procedure is renamed ‘ordinary legislative procedure’ and is differentiated from a ‘special legislative procedure’. The legal acts adopted in a legislative procedure are called ‘legislative acts’. The symbols of the European Union – flag, anthem, motto, currency and Europe Day – are not mentioned. However, in Declaration No. 52 on the symbols of the European Union, which is annexed to the Final Act of the Intergovernmental Conference which adopted Treaty of Lisbon, 16 of the 27 Member States, including the Federal Republic of Germany, emphasise that these symbols ‘will for them continue as symbols to express the sense of community of the people in the European Union and their allegiance to it’. The precedence of application of EU and Community law over national law is still not expressly set out (see A. I. 3. i) below regarding the declaration in this regard). This notwithstanding, the Treaty of Lisbon incorporates essential contents of the Constitutional Treaty into the existing Treaty system and contains additional provisions specific to individual Member States ([…]).

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b) The Treaty of Lisbon displaces the previous ‘three pillar structure’ of the European Union (Art. 1(3) first sentence TEU). The Treaty on European Union retains its name (cf. for a consolidated version <TEU – Lisbon> OJ 2008 C 115/13); the Treaty establishing the European Community is renamed Treaty on the Functioning of the European Union (TFEU) (cf. for a consolidated version OJ 2008 C 115/47). The European Union supersedes the European Community (Art. 1(3) third sentence TEU – Lisbon) and acquires legal personality (Art. 47 TEU – Lisbon). The European Atomic Energy Community is removed from the former umbrella organisation of the European Union and – aside from its institutional connection with the European Union – continues to exist as an independent international organisation.

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c) Under the Treaty of Lisbon, fundamental rights protection in the European Union is based on two elements: the Charter of Fundamental Rights of the European Union as amended on 12 December 2007 (OJ C 303/1; BGBl 2008 II p. 1165 ff.), which has the same legal value as the Treaties (Art. 6(1) first sentence TEU – Lisbon) and thus becomes legally binding, and the unwritten fundamental rights of the European Union, which continue to apply as general principles of law (Art. 6(3) TEU – Lisbon). These two elements of European fundamental rights protection are complemented by Art. 6(2) TEU – Lisbon, which authorises and obliges the European Union to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (BGBl 2002 II p. 1054).

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d) Title II of the new version of the Treaty on European Union contains ‘provisions on democratic principles’. According to this Title, the functioning of the European Union is founded on representative democracy (Art. 10(1) TEU – Lisbon), which is complemented by elements of participatory, associative and direct democracy, in particular a citizens’ initiative (Art. 11 TEU – Lisbon). The principle of representative democracy makes reference to two elements providing legitimacy: first, the European Parliament as the ‘direct’ representation of EU citizens and, second, the heads of state and government represented in the European Council as well as members of their government in the Council ‘themselves democratically accountable either to their national Parliaments, or to their citizens’ (Art. 10(2) TEU – Lisbon).

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National Parliaments ‘contribute actively to the good functioning of the Union’ (Art. 12 TEU – Lisbon). Draft legislative acts of the European Union must be made available to national Parliaments eight weeks before they are placed on the Council agenda (Art. 4 Protocol No. 1 on the role of national Parliaments in the European Union). The so-called early warning system provided for in Protocol No. 2 on the application of the principles of subsidiarity and proportionality (Subsidiarity Protocol) authorises any national Parliament or any chamber of a national Parliament to submit a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity within these eight weeks (Art. 6 Subsidiarity Protocol). However, a draft must only be reviewed if the number of reasoned opinions represents a certain proportion of all the votes allocated to the national Parliaments (Art. 7(2) and (3) Subsidiarity Protocol). Moreover, national Parliaments or their chambers may, via their Member States, lodge actions of annulment pursuant to Art. 263 TFEU if they consider a legislative act to be incompatible with the principle of subsidiarity (Art. 8 Subsidiarity Protocol).

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In addition, national Parliaments are involved in the political monitoring of Europol and Eurojust (Art. 12(c) TEU – Lisbon; Art. 88(2) subpara. 2, Art. 85(1) subpara. 3 TFEU), and, in the so-called bridging or passerelle procedure, a Treaty revision procedure introduced by the Treaty of Lisbon, they are entitled to make known their opposition within six months of the date of notification (Art. 48(7) subpara. 3 TEU – Lisbon; Art. 81(3) subpara. 3 TFEU). The opposition of one national Parliament is sufficient to cause the proposed Treaty change to fail.

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e) The Treaty of Lisbon also reforms the institutions and procedures of the EU.

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aa) The European Parliament’s powers with regard to law-making are further extended. The co-decision procedure, in which the European Parliament and the Council have equal rights, is simplified, renamed ‘ordinary legislative procedure’ and declared the rule (Art. 14(1) first sentence TEU – Lisbon; Art. 289(1) TFEU). The cooperation procedure is abolished. The consultation and assent procedures are summarised under the term ‘special legislative procedure’ and are only applied in specific cases provided for in the Treaties (Art. 289(2) TFEU). The strengthened role of the European Parliament in law-making also affects the conclusion of international agreements by the European Union. In the case of agreements covering fields subject to either the ordinary legislative procedure, or, where consent by the European Parliament is required, the special legislative procedure, the Council may only adopt a decision concluding an international agreement after obtaining the consent of the European Parliament (Art. 218(6) subpara. 2(a) no. v TFEU).

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Moreover, the European Parliament and the Council have equal rights in deciding on the draft budget (Art. 14(1) first sentence TEU – Lisbon; Art. 314 TFEU), and the European Parliament has political monitoring rights. Following a proposal by the European Council, the European Parliament elects the President of the Commission by a majority of its component members (Art. 14(1) third sentence, Art. 17(7) TEU – Lisbon). The proposal must take into account the elections to the European Parliament (Art. 17(7) subpara. 1 first sentence TEU – Lisbon). If the proposed candidate does not obtain the required majority, the European Council must within one month propose a new candidate to the European Parliament (Art. 17(7) subpara. 1 third sentence TEU – Lisbon). Furthermore, the European Parliament – just like national Parliaments – monitors Europol and is involved in the evaluation of Eurojust’s activities (Art. 88(2) subpara. 2, Art. 85(1) subapara. 2 TFEU).

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The Treaty of Lisbon changes the composition of the European Parliament, which is elected ‘by direct universal suffrage in a free and secret ballot’ (Art. 14(3) TEU – Lisbon). It no longer consists of representatives ‘of the peoples of the states brought together in the Community’ (Art. 189(1) EC Treaty), but ‘of the Union’s citizens’ (Art. 14(2) subpara. 1 first sentence TEU – Lisbon). The distribution of seats in the European Parliament is to be set out in secondary law for the first time (Art. 14(2) subpara. 2 TEU – Lisbon). Under the envisaged procedure, the European Council adopts by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament. This decision must respect the principles contained in Art. 14(2) subpara. 1 second to fourth sentence TEU – Lisbon; this means that the members of the European Parliament must not exceed 750 in number, ‘plus the President’ – which means 751 overall; representation of citizens must be degressively proportional, with a minimum threshold of six members per Member State. No Member State is to be allocated more than 96 seats.

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bb) The Treaty of Lisbon upgrades the European Council to an institution of the European Union, which is now unitary and has legal personality (Art. 13(1) subpara. 2 TEU – Lisbon). The actions of the European Council are thus subject to the jurisdiction of the Court of Justice of the European Union, but only insofar as the European Council’s actions are intended to produce legal effects vis-à-vis third parties (Art. 263(1), Art. 265(1) TFEU), and in the area of foreign and security policy only insofar as the Court of Justice has jurisdiction, by way of exception (Art. 275(2) TFEU).

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Moreover, the Treaty of Lisbon introduces the position of (permanent) President of the European Council. The President is elected by the European Council, by qualified majority, for a term of two and a half years (Art. 15(5) TEU – Lisbon). The President of the European Council chairs the European Council and ensures the preparation of its work, including driving its work forward; the President ensures, ‘at his level’, the external representation of the EU on issues concerning its common foreign and security policy, ‘without prejudice to’ the powers of the High Representative of the Union for Foreign Affairs and Security Policy (Art. 15(6) subparas. 1 and 2 TEU – Lisbon). The office of President of the European Council is compatible with other European offices, but not with a national office (Art. 15(6) subpara. 3 TEU – Lisbon).

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cc) The Treaty of Lisbon declares voting by qualified majority in the Council to be the rule (Art. 16(3) TEU – Lisbon); it also declares the ordinary legislative procedure (Art. 16(1) TEU – Lisbon; Art. 289(1) TFEU), in the course of which the Council also decides by qualified majority in principle (Art. 294(8) and (13) TFEU), to be the standard. The previous system of weighted votes is to be replaced on a long-term basis by a ‘double majority’ system, according to which a qualified majority in principle requires 55% of the Member States comprising at least 65% of the population of the EU (Art. 16(4) TEU – Lisbon; Art. 3 Protocol No. 36 on transitional provisions). Where the Council does not act on a proposal from the Commission or from the High Representative for Foreign Affairs and Security Policy, the qualified majority will, in the long term, be a ‘double majority’ of at least 72% of the Member States, comprising at least 65% of the population of the EU (Art. 238(2) TFEU, Art. 3 Protocol No. 36 on transitional provisions). This is restricted by the so-called Ioannina mechanism (Declaration No. 7 on Article 16(4) TEU and Article 238(2) TFEU). For the first time, deliberations and votes on draft legislative acts in the Council are public (Art. 16(8) TEU – Lisbon).

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dd) As from 1 November 2014, the Commission is to consist of a number of Commissioners corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number (Art. 17(5) TEU – Lisbon; cf. also Art. 244 TFEU). However, following the entry into force of the Treaty of Lisbon, a decision could be taken, ‘in accordance with the necessary legal procedures’, to the effect that the Commission shall continue to include one national of each Member State (cf. Presidency conclusions of the Brussels European Council on 11 and 12 December 2008, Bulletin EU 12-2008, I.4 para. 2).

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Further, the Treaty of Lisbon revises the system of independent, executive law-making of the Commission and introduces a new legal instrument – the ‘non-legislative act’ – (cf. prior Art. 202 third indent first sentence, Art. 211 fourth indent EC Treaty). A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act (Art. 290(1) subpara. 1 TFEU). The objectives, content, scope and duration of the delegation of power (Art. 290(1) subpara. 2 TFEU) as well as the conditions to which the delegation is subject (Art. 290(2) subpara. 1 TFEU) must be explicitly defined in the legislative acts. These ‘delegated’ legal acts (Art. 290(3) TFEU) must be distinguished from implementing acts. Where uniform conditions for implementing legally binding acts are needed, those acts can confer implementing powers on the Commission, or, in exceptional cases, on the Council (Art. 291(2) TFEU). Measures adopted on the basis of conferred implementing powers are designated as implementing acts (Art. 291(4) TFEU).

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ee) The newly introduced position of ‘High Representative of the Union for Foreign Affairs and Security Policy’ combines into one several offices that are presently responsible for the foreign relations of the European Union and the European Communities (Art. 18(2) to (4) TEU – Lisbon). The High Representative ‘conducts’ the common foreign and security policy, including the common security and defence policy (Art. 18(2) first and third sentence TEU – Lisbon). That means that the High Representative has a right of proposal vis-à-vis the Council, and carries out the common foreign and security policy ‘as mandated by the Council’ (Art. 18(2) second sentence, Art. 27(1) TEU – Lisbon). The High Representative is ‘appointed’ by the European Council, acting by a qualified majority, and with the agreement of the President of the Commission (Art. 18(1) first sentence TEU – Lisbon). As one of the Vice-Presidents of the Commission, they are subject to a vote of consent by the European Parliament (Art. 17(4) first sentence and (7) subpara. 3 TEU – Lisbon). The duration of their term of office is not laid down (cf., however, Art. 18(1) second sentence, Art. 17(8) third sentence TEU – Lisbon).

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In ‘fulfilling his mandate’, the High Representative is assisted by a European External Action Service, which works in cooperation with the diplomatic services of the Member States and comprises officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States (Art. 27(3) first and second sentence TEU – Lisbon). Additional details, in particular the organisation and functioning of the European External Action Service, are to be established by a decision of the Council (Art. 27(3) third sentence TEU – Lisbon; cf. also BTDrucks 16/9316).

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ff) The Treaty of Lisbon also further develops the framework for the Court of Justice of the European Communities, which is renamed the Court of Justice of the European Union. The Court of Justice generally has no jurisdiction with respect to the common foreign and security policy. Exceptions apply with regard to monitoring compliance with Art. 40 TEU and proceedings for annulment reviewing the legality of decisions providing for restrictive measures against natural or legal persons (Art. 24(1) subpara. 2 fifth sentence TEU – Lisbon; Art. 275 TFEU). By contrast, the Court of Justice generally has jurisdiction in respect of the area of freedom, security and justice. Exceptions apply to a review of the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security (Art. 276 TFEU). Moreover, the Treaty of Lisbon modifies the types of actions that can be brought, namely the action for annulment.

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f) In principle, the Treaty of Lisbon provides for three procedures to amend the Treaties: the ordinary revision procedure (Art. 48(2) to (5) TEU – Lisbon), the simplified revision procedure (Art. 48(6) TEU – Lisbon) and the so-called passerelle procedure (Art. 48(7) TEU – Lisbon). Amendments made under the ordinary revision procedure, which serve either to increase or to reduce the competences conferred on the European Union (Art. 48(2) second sentence TEU – Lisbon), are adopted, as was previously the case, by a conference of representatives of the governments of the Member States – where necessary after examination by a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission (Art. 48(3) TEU – Lisbon). They enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements (Art. 48(4) subpara. 2 TEU – Lisbon).

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Amendments made under the simplified revision procedure require a unanimous decision of the European Council, which does not enter into force ‘until it is approved by the Member States in accordance with their respective constitutional requirements’ (Art. 48(6) subpara. 2 third sentence TEU – Lisbon; regarding the previous framework in the Treaties, cf. Art. 17(1) subpara. 1, Art. 42 TEU; Art. 22(2), Art. 190(4), Art. 229a, Art. 269(2) EC Treaty). The scope of application of the simplified revision procedure is limited to Part III of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union (Art. 48(6) subpara. 1 TEU – Lisbon). Amendments may not increase the competences conferred on the European Union in the Treaties (Art. 48(6) subpara. 3 TEU – Lisbon). The Treaties, as developed by the Treaty of Lisbon, contain further provisions which are modelled on Art. 48(6) TEU – Lisbon, but which are limited to a specific subject matter, and are slightly extended by the Treaty of Lisbon (see Art. 42(2) subpara. 1 TEU – Lisbon – introduction of a common defence policy; Art. 25(2) TFEU – extension of the rights of citizens of the EU; Art. 218(8) subpara. 2 second sentence TFEU – accession of the European Union to the European Convention on Human Rights; Art. 223(1) subpara. 2 TFEU – introduction of a uniform electoral procedure for the European Parliament; Art. 262 TFEU – competence of the European Union to create European intellectual property rights; Art. 311(3) TFEU – determination of the European Union’s own resources).

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Amendments made under the general passerelle procedure are likewise based on a unanimous decision of the European Council, which can only be adopted after obtaining the consent of the European Parliament (Art. 48(7) subpara. 4 TEU – Lisbon). This requires that no national Parliament makes known its opposition to the proposal within six months (Art. 48(7) subpara. 3 TEU – Lisbon). Unlike the ordinary and the simplified revision procedure, the general passerelle procedure concerns specific amendments relating to voting in the Council or legislative procedure. Where the Treaty on the Functioning of the European Union or Title V of the Treaty on European Union provide for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case (Art. 48(7) subpara. 1 first sentence TEU – Lisbon). Exceptions apply with regard to decisions with military implications or those in the area of defence (Art. 48(7) subpara. 1 second sentence TEU – Lisbon). Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure (Art. 48(7) subpara. 2 TEU – Lisbon; cf. Art. 67(2), Art. 137(2) subpara. 2 second sentence, Art. 175(2) subpara. 1 EC Treaty). Both alternatives of the general passerelle procedure do not apply to Art. 311(3) and (4), Art. 312(2) subpara. 1, Art. 352 and Art. 354 TFEU (cf. Art. 353 TFEU). The general passerelle procedure is supplemented by special passerelle clauses (cf. Art. 31(3) TEU – Lisbon – decisions regarding the common foreign and security policy in cases other than those listed in Art. 31(2) TEU – Lisbon; Art. 81(3) subparas. 2 and 3 TFEU – measures relating to family law with cross-border implications; Art. 153(2) subpara. 4 TFEU – measures relating to certain areas of labour law; Art. 192(2) subpara. 2 TFEU – measures relating to environmental policy; Art. 312(2) subpara. 2 TFEU – determination of the multiannual financial framework; Art. 333(1) and (2) TFEU – voting procedure in the context of enhanced cooperation pursuant to Art. 326 ff. TFEU). A right to opposition of national Parliaments, in line with Art. 48(7) subpara. 3 of the TEU – Lisbon, is only provided for measures relating to family law with cross-border implications (Art. 81(3) subpara. 3 TFEU).

54

g) Art. 50 TEU – Lisbon introduces a right to withdraw from the European Union for Member States.

55

h) The Treaty of Lisbon pursues the aim of making the division of competence between the European Union and the Member States more transparent (cf. Laeken Declaration of 15 December 2001 on the future of the European Union, Bulletin EU 12-2001, I.27 Annex I>), and expands the competences of the European Union.

56

aa) It reaffirms the principles of division and exercise of competences of the European Union, in particular the principle of conferral (Art. 5(1) first sentence and (2) first sentence TEU – Lisbon; cf. also Art. 1(1), Art. 3(6), Art. 4(1), Art. 48(6) subpara. 3 TEU – Lisbon; Art. 2(1) and (2), Art. 4(1), Art. 7, Art. 19, Art. 32, Art. 130, Art. 132(1), Art. 207(6), Art. 337 TFEU; Declaration No. 18 in relation to the delimitation of competences; Declaration No. 24 concerning the legal personality of the European Union), as well as the principles of subsidiarity (Art. 5(1) second sentence and (3) TEU – Lisbon) and proportionality (Art. 5(1) second sentence and (4) TEU – Lisbon). The latter principles are also set out in procedural terms in the Subsidiarity Protocol.

57

Moreover, the European Union is obliged to respect ‘the equality of Member States before the Treaties’, their ‘essential state functions’, as well as the national identities of the Member States, which are ‘inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’ (Art. 4(2) first and second sentence TEU – Lisbon). ‘Ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security’ are listed as examples.

58

bb) For the first time, the competences of the European Union are categorised and classified. Art. 2 TFEU distinguishes between two categories of competences. Based on the intensity of European action and its effects on Member States, a general distinction is made between exclusive competence (Art. 2(1) TFEU), shared competence, which corresponds to the previous category of concurrent competence (Art. 2(2) TFEU) and competence to carry out actions to support, coordinate or supplement the actions of the Member States (Art. 2(5) TFEU). In addition to these three categories of competence, Art. 2 TFEU specifies two areas that are not included as categories of competences. The coordination of economic and employment policies (Art. 2(3) TFEU) and the common foreign and security policy (Art. 2(4) TFEU) are subject to separate rules. Art. 3 ff. TFEU lists specific areas – albeit not as an exhaustive catalogue – and assigns them to the categories of competences.

59

cc) The Treaty of Lisbon establishes additional competences for the European Union, expands existing competences in terms of their content and makes areas that previously fell under intergovernmental cooperation subject to supranational governance.

60

(1) In the former ‘first pillar’, the Treaty of Lisbon establishes new competences for the European Union with regard to neighbourhood policy (Art. 8 TEU – Lisbon), services of general interest (Art. 14 TFEU), energy (Art. 194 TFEU), tourism (Art. 195 TFEU), civil protection (Art. 196 TFEU) and administrative cooperation (Art. 197 TFEU). Furthermore, the Treaty expands existing EU competences, which are transferred from the Treaty establishing the European Community to the Treaty on the Functioning of the European Union. In particular, this concerns the framework on the common commercial policy, in respect of which the competence is extended, in terms of content, to foreign direct investment; in terms of its nature, it is extended to trade in services and the commercial aspects of intellectual property (Art. 207(1) first sentence in conjunction with Art. 3(1)(e) TFEU). The flexibility clause (Art. 352 TFEU) is no longer limited to the internal market (cf., however, Art. 352(3) and (4) TFEU); its exercise is subject to the consent of the European Parliament for the first time (Art. 352(1) TFEU).

61

(2) The common foreign and security policy, which previously formed part of the ‘second pillar’, is set out in Title V of the Treaty on European Union (see also Art. 40 TEU – Lisbon; Art. 2(4) TFEU). It is subject to specific rules and procedures (Art. 24(1) subpara. 2 TEU – Lisbon), which ‘will not affect the existing legal basis, responsibilities, and powers of each Member State in relation to the formulation and conduct of its foreign policy (...)’ (Declaration No. 14 concerning the common foreign and security policy). Decisions concerning the common foreign and security policy by the European Council and the Council must in principle be unanimous (Art. 31(1) TEU – Lisbon). That said, the European Council may, through the special passerelle clause in Art. 31(3) TEU – Lisbon, unanimously adopt a decision stipulating that the Council shall act by a qualified majority in cases other than those referred to in Art. 31(2) TEU – Lisbon. This does not apply to decisions having military or defence implications (Art. 31(4) second sentence TEU – Lisbon). The adoption of legislative acts is excluded (Art. 24(1) subpara. 2 second sentence, Art. 31(1) subpara. 1 second sentence TEU – Lisbon). The European Parliament must be consulted on the main aspects and informed of how those policies evolve. It must be ensured that its views are duly taken into consideration (Art. 36 TEU – Lisbon).

62

The common security and defence policy already provided for in Art. 17 TEU is fleshed out in more detail in the Treaty of Lisbon as an integral part of the common foreign and security policy (Art. 42 to Art. 46 TEU – Lisbon). The Council is authorised to adopt decisions on tasks ‘in the course of which the Union may use civilian and military means’ (Art. 43(2) TEU – Lisbon). Moreover, a collective defence clause of the Member States is introduced. If a Member State is the victim of armed aggression on its territory, ‘the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter’ (Art. 42(7) subpara. 1 first sentence TEU – Lisbon). This shall not prejudice the specific character of the security and defence policy of certain Member States (Art. 42(7) subpara. 1 second sentence TEU – Lisbon). The permanent structured cooperation of Member States, established by the Treaty of Lisbon, is intended to contribute to increasing the flexibility of the common security and defence policy (Art. 42(6), Art. 46 TEU – Lisbon; Protocol No. 10 on permanent structured cooperation).

63

(3) The Treaty of Lisbon transfers the area of police and judicial cooperation in criminal matters – the only area remaining in the ‘third pillar’ following the Treaties of Amsterdam and Nice – to the scope of application of the Treaty on the Functioning of the European Union. Title V of the Treaty on the Functioning of the European Union, which is titled ‘area of freedom, security and justice’, now encompasses the entire field of justice and home affairs, which under the Treaty of Maastricht was still subject to intergovernmental cooperation in its entirety.

64

(a) The Treaty of Lisbon expands the competences in the individual policy areas of Title V of the Treaty on the Functioning of the European Union.

65

(aa) Within the framework of judicial cooperation in criminal matters, the Treaty of Lisbon authorises the European Union to establish ‘minimum rules’ with regard to criminal procedural law by means of directives, ‘to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension’ (Art. 82(2) subpara. 1 TFEU). These rules may concern ‘mutual’ admissibility of evidence, the rights ‘of individuals’ in criminal procedure, the rights of victims of crime or any other specific aspects of criminal procedure which the Council has identified in advance by a decision after obtaining the consent of the European Parliament (Art. 82(2) subpara. 2 TFEU).

66

Furthermore, the Treaty of Lisbon expands the existing EU competence of approximation of criminal laws and regulations (cf. Art. 31(1)(e) TEU). The European Union is authorised to enact directives establishing ‘minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis’ (Art. 83(1) subpara. 1 TFEU). The list of these areas of crime is not exhaustive. It ranges from terrorism, trafficking in human beings, sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment to computer crime and organised crime. ‘On the basis of developments in crime’, the Council may, by unanimous decision, add other areas of crime after obtaining the consent of the European Parliament (Art. 83(1) subpara. 3 TFEU). The Treaty of Lisbon goes beyond this competence for the approximation of criminal laws and regulations by codifying a criminal ‘annex competence’ in all areas which have been ‘subject to harmonisation measures’, ‘if the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy’ in these areas (Art. 83(2) first sentence TFEU).

67

Finally, the Treaty of Lisbon allows for expanding the powers of Eurojust, an EU body with legal personality that coordinates national prosecuting authorities in cases of serious cross-border crime (cf. Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime, OJ L 63/1). In particular, Eurojust can be assigned the tasks of initiating and coordinating criminal investigations, by means of regulations adopted in accordance with the ordinary legislative procedure (Art. 85(1) subpara. 2(a) TFEU), but formal acts of judicial procedure are reserved for the competent national authorities (Art. 85(2) TFEU). In order to combat crimes affecting the financial interests of the Union, the Council, acting unanimously and after obtaining the consent of the European Parliament, may establish a European Public Prosecutor’s Office from Eurojust (Art. 86(1) subpara. 1 TFEU). In that case, the European Public Prosecutor’s Office would be responsible for the investigation, prosecution and bringing to judgment before the national courts of such crime (Art. 86(2) TFEU).

68

(bb) In the context of police cooperation, the European cross-border police agency Europol can not only be assigned tasks, including the collection, storage, processing, analysis and exchange of information (cf. Art. 3(1) of the Convention on the establishment of a European Police Office of 26 July 1995, OJ C 316/2) in accordance with the ordinary legislative procedure, but also the power to coordinate, organise and implement investigative and operational action carried out jointly with the Member States’ competent authorities or in the context of joint investigative teams (Art. 88(2) TFEU). However, such operational action may only be carried out by Europol in liaison and in agreement with the authorities of the Member State or states whose territory is concerned (Art. 88(3) first sentence TFEU). The application of coercive measures remains the exclusive responsibility of the competent national authorities (Art. 88(3) second sentence TFEU).

69

(b) Special procedural rules apply for the exercise of the competences. In certain policy areas, the Council must act unanimously (cf. Art. 77(3), Art. 81(3) subpara. 1, Art. 86(1) subpara. 1, Art. 87(3) subpara. 1, Art. 89 TFEU).

70

(aa) In the area of judicial cooperation in civil matters, the Council, on a proposal from the Commission, may adopt a unanimous decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure (Art. 81(3) subpara. 2 TFEU). Such a proposal is notified to the national Parliaments, which may make known their opposition within six months (Art. 81(3) subpara. 3 TFEU).

71

(bb) In the areas of judicial cooperation in criminal matters and police cooperation, acts can be proposed not only by the Commission, but also on the initiative of a quarter of the Member States (Art. 76(b) TFEU). Moreover, the exercise of individual competences of the EU is tied to a so-called emergency brake clause (Art. 82(3), Art. 83(3), Art. 86(1) subpara. 2 and 3, Art. 87(3) subpara. 2 and 3 TFEU; cf. already Art. 23(2) subpara. 2 TEU). According to this clause, where a member of the Council considers that a draft directive concerning the approximation of criminal laws and criminal procedural laws would affect ‘fundamental aspects of its criminal justice system’, it may request that the draft directive be referred to the European Council (Art. 82(3) subpara. 1, Art. 83(3) subpara. 1 TFEU). In case of a consensus within this body, the European Council is to, within four months of the suspension of the legislative procedure, refer the draft back to the Council. In case of disagreement, facilitated provisions on enhanced cooperation apply. If at least nine Member States wish to establish enhanced cooperation on the basis of the draft concerned, the authorisation to proceed with enhanced cooperation is granted, pursuant to Art. 82(3) subpara. 2, Art. 83(3) subpara. 2 TFEU, upon notification of the European Parliament, the Council and the Commission (Art. 20(2) TEU – Lisbon; Art. 239 TFEU). A slightly modified ‘emergency brake clause’ applies to the establishment of the European Public Prosecutor’s Office and the adoption of measures concerning operational cooperation between national police, customs and other law enforcement authorities. Under that clause, a group of at least nine Member States may request that a draft legislative act be referred to the European Council in the absence of unanimity in the Council (Art. 86(1) subpara. 2 second sentence, Art. 87(3) subpara. 2 first sentence TFEU).

72

i) Declaration No. 17 concerning primacy, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, states the following :

73

The Conference recalls that, in accordance with well settled case-law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case-law.

74

The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):

75

‘Opinion of the Council Legal Service of 22 June 2007

76

It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case-law (Costa/ENEL, 15 July 1964, Case 6/641 [1]) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.

77

[1] It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.’

78

4. On 24 April 2008, the Bundestag adopted the Act of Approval of the Treaty of Lisbon with 515 of 574 votes (Plenary minutes of the Bundestag, Plenarprotokoll des Bundestags – BTPlenarprotokoll 16/157, p. 16483 A). The Bundesrat gave its consent to the Act of Approval with a two-thirds majority on 23 May 2008 (Plenary minutes of the Bundesrat, Plenarprotokoll des Bundesrates – BRPlenarprot 844, p. 136 B). The Federal President certified the Act of Approval on 8 October 2008. It was promulgated in the Federal Law Gazette II on 14 October 2008 (p. 1038 ff.) and entered into force on the following day (Art. 2(1) of the Act of Approval).

79

5. Furthermore, the Bundestag adopted accompanying legislation on 24 April 2008: the Act Amending the Basic Law (Articles 23, 45 and 93) (Amendment Act – BTPlenarprot 16/157, p. 16477 A) and the Act Strengthening the Rights of the Bundestag and of the Bundesrat in Matters Concerning the European Union (Strengthening Act – BTPlenarprot 16/157, p. 16482 D). The Bundesrat approved both Acts on 23 May 2008 (BRPlenarprot 844, p. 136 D).

80

a) The Act Amending the Basic Law (Articles 23, 45 and 93) of 8 October 2008 was promulgated in the Federal Law Gazette I of 16 October 2008 (p. 1926) and will enter into force on the day on which the Treaty of Lisbon, pursuant to its Art. 6(2), enters into force for the Federal Republic of Germany (Art. 2 of the Amendment Act).

81

Pursuant to Art. 1 no. 1 of the Amendment Act, Art. 23(1a) of the Basic Law now states as follows:

82

(1a) The Bundestag and the Bundesrat shall have the right to bring an action before the Court of Justice of the European Union to challenge a legislative act of the European Union for infringing the principle of subsidiarity. The Bundestag is obliged to initiate such an action at the request of one fourth of its members. By a statute requiring the consent of the Bundesrat, exceptions to Art. 42(2) first sentence and Art. 52(3) first sentence may be authorised for the exercise of the rights granted to the Bundestag and the Bundesrat under the contractual foundations of the European Union.

83

The following sentence is added to Art. 45 of the Basic Law (Art. 1 no. 2 of the Amendment Act):

84

It [the Bundestag] may also empower it [the Bundestag Committee on European Affairs] to exercise the rights granted to the Bundestag under the contractual foundations of the European Union.

85

In Art. 93(1) no. 2 of the Basic Law, the words ‘a third’ are replaced by ‘a quarter’ (Art. 1 no. 3 of the Amendment Act).

86

b) The Strengthening Act (BTDrucks 16/8489) has not yet been certified and promulgated, as the amendments to Art. 23 and Art. 45 of the Basic Law are a prerequisite for this Act to enter into force; it can only be certified and promulgated once the Amendment Act has entered into force (cf. BVerfGE 34, 9 <22 ff.>; 42, 263 <283 ff.>). It will enter into force one day after promulgation, but not earlier than one day after the entry into force of the Amendment Act (Art. 3 of the Strengthening Act).

87

Art. 1 of the Strengthening Act contains the Act on the Exercise of the Rights of the Bundestag and the Bundesrat Arising from the Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union and the Treaty establishing the European Community of 13 December 2007. It is designed to create the domestic framework for the exercise of the participation rights that the Treaty of Lisbon grants to the Bundestag and the Bundesrat, with the latter being considered as a chamber of a national Parliament in this respect (BTDrucks 16/8489, p. 7). These participation rights include the right to submit a reasoned opinion under Art. 6(1) of the Subsidiarity Protocol (subsidiarity challenge) (Art. 1 § 2 of the Strengthening Act), the right to bring an action, via the Federal Government, on grounds of infringement of an EU legislative act of the principle of subsidiarity under Art. 8 of the Subsidiarity Protocol (subsidiarity action) (Art. 1 § 3 of the Strengthening Act), and the right to make known their opposition to an EU draft legislative act under Art. 48(7) subpara. 2 TEU – Lisbon and Art. 81(3) subpara. 3 TFEU (Art. 1 § 4 of the Strengthening Act).

88

Art. 1 § 2(1) of the Strengthening Act provides, in substance, that the Federal Government must provide the Bundestag and the Bundesrat with comprehensive notification of draft legislative acts of the European Union ‘as early as possible’, but no later than two weeks after the start of the eight-week time period. […]

89

Art. 1 § 3 of the Strengthening Act sets out the procedure for subsidiarity actions. […]

90

Art. 1 § 4(3) of the Strengthening Act governs the interaction of Bundestag and Bundesrat in exercising their right to make their opposition known pursuant to Art. 48(7) subpara. 3 TEU – Lisbon, in consideration of the domestic division of tasks.

91-94

[…]

95

Art. 1 § 5 of the Strengthening Act provides for the possibility of the Bundestag plenary to authorise the Committee on the Affairs of the European Union to exercise the rights of the Bundestag under Art. 1 of the Strengthening Act. […]

96

[…]

97

6. The Treaty of Lisbon must be ratified under international law by the Member States of the European Union in accordance with their respective constitutional requirements (Art. 6(1) first sentence Treaty of Lisbon). The instruments of ratification are to be deposited with the Government of the Italian Republic (Art. 6(1) second sentence Treaty of Lisbon).

98

Following the application for a preliminary injunction by the complainants in proceedings III., IV. and V. and by the Organstreit applicants, seeking to prevent a situation that would make the Treaty of Lisbon binding on the Federal Republic of Germany through the deposit of the instrument of ratification, the Federal President declared, via the Head of the Office of the Federal President, that he would not certify the instrument of ratification until the Federal Constitutional Court had rendered a final decision in the principal proceedings.

II.

99

1. The constitutional complaints are directed against the Act of Approval of the Treaty of Lisbon. Additionally, the constitutional complaints of the complainants in proceedings III. and VI. challenge the Act Amending the Basic Law (Articles 23, 45 and 93) and the Act Strengthening the Rights of the Bundestag and of the Bundesrat in Matters Concerning the European Union.

100

a) All complainants assert a violation of their right under Art. 38 of the Basic Law. They claim that, as German citizens entitled to vote, Art. 38 of the Basic Law guarantees them the individual right to vote in the elections to the German Bundestag, and thus to participate in providing legitimation to state authority at the federal level and to influence the exercise of such state authority. They assert that the transfer of sovereign powers to the European Union effected by the Act of Approval interferes with this right because legitimation and the exercise of state power are now beyond their reach. They argue that this interference exceeds the limits of the legal basis authorising European integration in Art. 23(1) third sentence in conjunction with Art. 79(3) of the Basic Law and is therefore not justified. They add that the principle of democracy, to the extent that Art. 79(3) in conjunction with Art. 20(1) and (2) of the Basic Law declares it inviolable, has been violated in two respects: firstly, through the erosion of competences of the German Bundestag and, secondly, through the lack of democratic legitimation of the European Union.

101-110

[...]

111-114

b) […]

115-118

c) […]

119-124

d) […]

125-129

e) […]

130

2. The applicants in the Organstreit proceedings challenge the Act of Approval of the Treaty of Lisbon; the applicant in proceedings I. additionally challenges the accompanying acts.

131

a) […]

132

The applicant in proceedings I. submits that the Act of Approval and the accompanying acts violate his status rights as a member of the Bundestag following from Art. 38(1) of the Basic Law.

133

Moreover, the applicant asserts in essence that his participation rights in the legislative procedure as a member of the Bundestag under Art. 38(1) of the Basic Law have been curtailed. […]

134

b) The applicant in proceedings II., a parliamentary group in the Bundestag, makes an application by way of vicarious standing (Prozessstandschaft) for the Bundestag for a declaration that the Act of Approval violates the rights of the Bundestag as a legislative organ and is therefore incompatible with the Basic Law. The applicant does not specify a respondent in its submissions.

135

The applicant substantiates the application by stating that the Act of Approval transfers democratic decision-making powers that go beyond the scope permissible under Art. 23(1) third sentence in conjunction with Art. 79(3) of the Basic Law. […]

III.

136

The German Bundestag ([…]), the Federal Government ([…]) and the Bundesrat ([…]) submitted written statements on the constitutional complaints in proceedings III. and V. The Federal Government and the Bundesrat additionally included the constitutional complaint in proceedings IV. in their statement. The Landtag (state parliament) of Baden-Württemberg ([…]) submitted a statement on the constitutional complaints in proceedings III. and IV.

137-154

[...]

155

2. In the Organstreit proceedings, the German Bundestag ([…]), the Federal Government ([…]), the Bundesrat ([…]) and the Landtag of Baden-Württemberg ([…]) submitted written statements.

156-165

[...]

IV.

166

The Federal Constitutional Court conducted an oral hearing on 10 and 11 February 2009, during the course of which the parties explained and expanded upon their submissions.

B.

167

The constitutional complaints challenging the Act of Approval of the Treaty of Lisbon are admissible to the extent that they challenge, on the basis of Art. 38(1) first sentence of the Basic Law, a violation of the principle of democracy, a loss of statehood of the Federal Republic of Germany, and a violation of the principle of the social state. The constitutional complaints in proceedings III. and VI., which challenge the accompanying legislation, are admissible to the extent that they are based on Art. 38(1) first sentence of the Basic Law (see I. below). The application in Organstreit proceedings II. is admissible to the extent that the applicant asserts a violation of the decision-making powers of the Bundestag regarding the deployment of the German armed forces (see II. below). For the rest, the constitutional complaints and the applications in Organstreit proceedings are inadmissible.

I.

168

The constitutional complaints are admissible to the extent that they assert, on the basis of Art. 38(1) first sentence of the Basic Law, that the Act of Approval and the accompanying acts violate the principle of democracy and the principle of the social state, and lead to a loss of statehood of the Federal Republic of Germany.

169

1. […]

170

2. The Act of Approval of the Treaty of Lisbon and the accompanying acts, as acts of German public authority, can be admissibly challenged in constitutional complaint proceedings. This applies regardless of the fact that these acts have not yet entered into force. Given that the Treaty of Lisbon becomes binding under international law once the Federal President certifies the instrument of ratification and deposits it with the depositary, the Act of Approval can, by way of exception, be challenged by constitutional complaint before it enters into force (cf. BVerfGE 108, 370 <385>). This applies accordingly to the accompanying acts, whose entry into force is tied to the entry into force of the Treaty of Lisbon. […]

171

3. For the complainants to have standing, they have to assert that the challenged acts of public authority amount to a violation of one of the fundamental rights or equivalent rights set out in Art. 93(1) no. 4a of the Basic Law and § 90(1) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), and that they are individually, directly and presently affected by this violation. The complainants must demonstrate and substantiate that such a violation may have occurred (§ 23(1) second sentence, § 92 of the Federal Constitutional Court Act, cf. BVerfGE 99, 84 <87>; 112, 185 <204>). The constitutional complaints fulfil this requirement to differing degrees.

172

a) Insofar as the complainants assert that the Act of Approval violates their right under Art. 38(1) first sentence of the Basic Law – which is equivalent to a fundamental right –, their standing depends on the substance of the individual challenges.

173

aa) The complainants in proceedings III., IV. and VI. sufficiently substantiate a violation of their right equivalent to a fundamental right under Art. 38(1) first sentence of the Basic Law by claiming that the erosion of the competences of the Bundestag violates the principle of democracy.

174

Art. 38(1) and (2) of the Basic Law guarantees the individual a right to participate in the election of the members of the German Bundestag (cf. BVerfGE 47, 253 <269>; 89, 155 <171>). This individual right does not only guarantee citizens the right to vote in elections to the German Bundestag and ensure adherence to the constitutional principles of electoral law in such elections. The guarantee of Art. 38 of the Basic Law also extends to the fundamental democratic substance of this right (cf. BVerfGE 89, 155 <171>). Elections do not just serve to provide legitimation to state authority at the federal level in accordance with Art. 20(1) and (2) of the Basic Law, they also serve to provide direction as to how state authority is exercised (cf. BVerfGE 89, 155 <172>). This is because voters can choose between competing candidates and parties that stand for election with different political ideas and concepts.

175

Elections would lose their meaning if the elected state organ did not have sufficient tasks and powers to act on the basis of the legitimation provided. Put differently, this means that Parliament does not just have an abstract responsibility for the sovereign acts of other powers, but the specific responsibility for acts of the state. The Basic Law, in Art. 23(1) third sentence in conjunction with Art. 79(3) and Art. 20(1) and (2), declared inviolable this link of democratic legitimation between voters and state authority. Within the scope of application of Art. 23 of the Basic Law, Art. 38 of the Basic Law precludes a violation of the principle of democracy – to the extent that this principle is declared inviolable by Art. 79(3) in conjunction with Art. 20(1) and (2) of the Basic Law – resulting from the erosion of the legitimation of state authority and influence on the exercise of sovereign powers provided by elections through the shift of tasks and powers away from the Bundestag.

176

bb) Insofar as the complainants in proceedings III., IV., V. and VI. assert that the European Union does not have the necessary democratic legitimation, Art. 38(1) first sentence of the Basic Law confers standing on them.

177

Deficiencies regarding the democratic legitimation of the European Union that have constitutional relevance can be challenged by voters based on the same right that confers standing to challenge deficiencies regarding the scope of competences of domestic democracy affected by European integration. The interdependence between Art. 38(1) first sentence and Art. 20(1) and (2) of the Basic Law, which was originally only of domestic significance, is gradually expanded by further European integration. As a result of the transfer of sovereign powers in accordance with Art. 23(1) second sentence of the Basic Law, decisions that directly affect citizens are now shifted to the EU level. Where sovereign powers are transferred to the European Union, it is important to examine whether the sovereign powers exercised at EU level are based on the necessary democratic legitimation; this must be assessed in light of the principle of democracy, which can be invoked as a public right of the individual on the basis of Art. 38(1) first sentence of the Basic Law. Pursuant to Art. 23(1) first sentence of the Basic Law, the Federal Republic of Germany may only participate in a European Union that is committed to democratic principles. This means that there must be a link of democratic legitimation between citizens entitled to vote and European public authority, with citizens having a right to be involved in some way in this legitimation; this right is based on the original, and still applicable, constitutional concept of Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) of the Basic Law.

178

cc) Insofar as the complainants in proceedings III. and IV. assert that the Act of Approval leads to a loss of statehood of the Federal Republic of Germany, their standing likewise derives from Art. 38(1) first sentence of the Basic Law.

179

Under the Basic Law, voters have the right to decide on and freely adopt a change of identity of the Federal Republic of Germany, which would arise from its transformation into a constituent state of a European federal state, and the replacement of the Basic Law that would be brought about by this transformation. Like Art. 38(1) first sentence of the Basic Law, Art. 146 of the Basic Law creates participation rights of citizens entitled to vote: Art. 146 of the Basic Law confirms the pre-constitutional right to adopt a constitution from which the constituted power derives and by which it is bound. Art. 38(1) first sentence of the Basic Law guarantees the right to participate in the legitimation of the constituted power and to influence its exercise. The substantive requirements of Art. 23(1) first sentence of the Basic Law are complemented by Art. 146 of the Basic Law, which formulates the absolute outer limits of the Federal Republic of Germany’s participation in European integration. Only the constituent power is authorised to relinquish the state under the Basic Law; the constituted power is not authorised to do so.

180

[…]

181

dd) Insofar as the complainants in proceedings IV., V. and VI. invoke Art. 38(1) first sentence of the Basic Law to assert violations of other constitutional principles of the state order, their constitutional complaints are only admissible as regards the assertion that the principle of the social state is violated.

182

The complainants in proceedings V. establish the necessary connection with the principle of democracy, with regard to which Art. 38(1) of the Basic Law confers standing to directly challenge possible violations by means of a constitutional complaint. They assert, in a sufficiently specific manner, that the competences of the European Union laid down in the Lisbon Treaty could restrict the German Bundestag’s democratic latitude in social policy matters to such an extent that the Bundestag would no longer be able to satisfy the constitutional requirements set by the principle of the social state that arise from Art. 23(1) third sentence in conjunction with Art. 79(3) of the Basic Law.

183

However, insofar as the complainants in proceedings IV. and VI. assert violations of the principles of the rule of law and of the separation of powers, they fail to demonstrate a comparable connection to the principle of democracy. To this extent, the constitutional complaints are inadmissible.

184

b) To the extent that they are not based on Art. 38(1) first sentence of the Basic Law, the constitutional complaints in proceedings III. and V. against the Act of Approval are inadmissible.

185-186

aa) […]

187

bb) The complainants in proceedings III. and V. also lack standing with regard to the asserted violation of other fundamental rights and equivalent rights.

188

(1) The complainants assert that the Charter of Fundamental Rights, which is binding under Art. 6(1) first sentence TEU – Lisbon, makes human dignity subject to a balancing of interests; they fail to sufficiently substantiate that a violation of their fundamental right under Art. 1(1) of the Basic Law is possible.

189

The general limitations provided for in Art. 52(1) of the Charter can restrict human dignity as guaranteed by Art. 1 of the Charter, but not Art. 1(1) of the Basic Law. European fundamental rights must be distinguished from domestic fundamental rights. The complainants fail to sufficiently differentiate between the two fundamental rights spheres. Further, Art. 52(1) of the Charter could only be relevant for the domestic fundamental rights sphere insofar as a fundamental rights protection that is essentially equivalent to that afforded by the Basic Law, in accordance with Art. 23(1) first sentence of the Basic Law, could not be guaranteed at the EU level. Such shortcomings cannot be derived from the complainants’ submissions. The general qualification of human dignity asserted by the complainants does not readily follow from the Charter of Fundamental Rights or from the jurisprudence of the Court of Justice of the European Communities invoked by them. It must be left to future proceedings to determine whether and to what extent a lowering of the level of fundamental rights protection at EU level resulting from changes in primary law can even be admissibly challenged by invoking Art. 1(1) of the Basic Law and what substantiation requirements such a challenge must satisfy (regarding a violation of fundamental rights of the Basic Law by secondary EU law cf. BVerfGE 102, 147 <164>).

190

(2) Insofar as the complainant in proceedings III. additionally asserts that German state organs are largely released from their obligation to comply with the fundamental rights of the Basic Law within the scope of application of the Charter of Fundamental Rights, which is legally binding under Art. 6(1) first sentence TEU – Lisbon, he fails to sufficiently substantiate a possible violation of his fundamental rights or equivalent rights.

191

Regardless of how far the scope of application of the Charter of Fundamental Rights extends pursuant to Art. 51 thereof, the fundamental rights of the Basic Law form part of the constitutional core that sets limits to the transfer of sovereign powers to the European Union under Art. 23(1) second sentence of the Basic Law (cf. BVerfGE 37, 271 <279 f.>; 73, 339 <376>). The Federal Constitutional Court only refrains from exercising its jurisdiction over the applicability of secondary EU law and other acts of the EU that provide a legal basis for acts of German courts and authorities within the sovereign sphere of the Federal Republic of Germany as long as the European Union guarantees the existence and validity of fundamental rights that are essentially equivalent in terms of their substance and effectiveness to the fundamental rights protection that is inalienable under the Basic Law (cf. BVerfGE 73, 339 <376, 387>; 102, 147 <164>).

192

c) The complainants in proceedings III. and VI. assert that the accompanying legislation violates the principle of democracy; these challenges are admissible insofar as they are based on Art. 38(1) first sentence of the Basic Law.

193

The complainants sufficiently demonstrate and substantiate that the accompanying legislation may violate Art. 38(1) first sentence of the Basic Law. Standing conferred by Art. 38(1) first sentence of the Basic Law can also extend to legislation that is directly linked to an act of approval within the meaning of Art. 23(1) second sentence of the Basic Law. The complainants in proceedings VI. make the plausible submission that the Act of Approval of the Treaty of Lisbon and the accompanying legislation form a unit as regards constitutional procedure. The complainants’ challenge that the accompanying legislation does not create the necessary domestic conditions for the exercise of the participation rights granted to the Bundestag and the Bundesrat by the Treaty of Lisbon concerns the democratic substance of Art. 38(1) of the Basic Law. With regard to the Act Amending the Basic Law, the complainants in proceedings III. and VI. sufficiently address the special standard of review applicable to acts amending the Constitution following from Art. 79(3) in conjunction with Art. 20(1) and (2) of the Basic Law.

II.

194

The application lodged in Organstreit proceedings I. is inadmissible (see 1. below). The application lodged in Organstreit proceedings II. is admissible to the extent that the applicant asserts a violation of the decision-making powers of the Bundestag regarding deployment of the German armed forces (see 2. below).

195-200

1. […]

201

2. The application lodged in Organstreit proceedings II. is admissible in part.

202

a) As a parliamentary group of the German Bundestag, the applicant in proceedings II. has the legal ability to be a party to Organstreit proceedings (§ 13 no. 5, § 63 ff. of the Federal Constitutional Court Act). As a permanent group under the Bundestag Rules of Procedure (Geschäftsordnung des Bundestages), the applicant can assert rights of the Bundestag in its own name (cf. BVerfGE 1, 351 <359>; 2, 143 <165>; 104, 151 <193>; 118, 244 <255>). It can be established through a review of the submissions that the application is directed against the German Bundestag, which can be a respondent in Organstreit proceedings (§ 63 of the Federal Constitutional Court Act).

203

b) The applicant in proceedings II. has standing in part.

204

aa) The applicant asserts that the Act of Approval violates the constitutional requirement of a parliamentary decision regarding the deployment of armed forces (wehrverfassungsrechtlicher Parlamentsvorbehalt; cf. BVerfGE 90, 286 <383>); it thereby sufficiently demonstrates that the Act of Approval may violate or directly threaten to violate rights of the Bundestag (§ 23(1) second sentence, § 64(1) of the Federal Constitutional Court Act). The applicant in proceedings II. submits that the Treaty of Lisbon deprives the Bundestag of its decision-making powers regarding deployment of the German armed forces in the context of European crisis interventions given that Art. 42(4) TEU – Lisbon provides that the Council decides on ‘initiating a mission’. […]

205

Standing cannot be denied on the grounds that applicant and defendant would be the same entity (Insichprozess). Vicarious standing as provided for in § 64(1) of the Federal Constitutional Court Act reflects the reality of political power dynamics of Organstreit proceedings, in which the effective separation of powers is primarily realised through the recognition of minority rights, rather than through the traditional model of checks and balances between the formal institutions holding state power. Thus, the object and purpose of vicarious standing is to allow the parliamentary opposition and minority to assert rights of the Bundestag not only in the event that the Bundestag chooses to refrain from exercising its rights, in particular vis-à-vis the Federal Government that it supports politically (cf. BVerfGE 1, 351 <359>; 45, 1 <29 f.>; 121, 135 <151>); but also when the parliamentary minority seeks to assert rights of the Bundestag directly vis-à-vis the parliamentary majority ([…]). The conferral of vicarious standing constitutes both a manifestation of Parliament’s oversight function and a means of protecting the parliamentary minority (cf. BVerfGE 45, 1 <29 f.>; 60, 319 <325 f.>; 68, 1 <77 f.>; 121, 135 <151>; […]).

206

bb) The applicant in proceedings II. lacks standing insofar as it asserts that the Act of Approval transfers democratic decision-making powers that go beyond the scope permissible under Art. 23(1) third sentence in conjunction with Art. 79(3) of the Basic Law. The applicant does not sufficiently demonstrate that the Act of Approval may violate or directly threaten to violate rights of the Bundestag (§ 23(1) second sentence, § 64(1) of the Federal Constitutional Court Act). The principle of democracy guaranteed by Art. 20(1) and (2) of the Basic Law is not a right of the Bundestag, even including to the extent that it is declared inviolable by Art. 79(3) of the Basic Law. Organstreit proceedings do not allow for a general, abstract review of the constitutionality of the challenged act, independent of the applicant’s own rights (cf. BVerfGE 68, 1 <30>; 73, 73, 1 <30>; 80, 188 <212>; 104, 151 <193 f.>).

C.

I.

207

To the extent that the constitutional complaints in proceedings III. and VI. are admissible, they are in part well-founded. The Act Strengthening the Rights of the Bundestag and of the Bundesrat in Matters Concerning the European Union does not contain necessary provisions and is unconstitutional in this regard. For the rest, the constitutional complaints and the application in Organstreit proceedings II. – to the extent that they are admissible – are unfounded. As set out in the reasons to this judgment, there are no major constitutional concerns regarding the Act of Approval of the Treaty of Lisbon and the Act Amending the Basic Law (Articles 23, 45 and 93).

208

1. The standard of review for the Act of Approval of the Treaty of Lisbon is determined by the right to vote and to stand for election as a right that is equivalent to a fundamental right (Art. 38(1) first sentence in conjunction with Art. 93(1) no. 4a of the Basic Law). The right to vote encompasses a right to democratic self-determination, to free and equal participation in the exercise of state authority in Germany and to adherence to the principle of democracy, including respect for the constituent power of the people. In the procedural constellation of the present case, a review of a possible violation of the right to vote also encompasses encroachment on the principles that Art. 79(3) of the Basic Law lays down as the constitutional identity (cf. BVerfGE 37, 271 <279>; 73, 339 <375>).

209

a) Art. 38(1) of the Basic Law guarantees all German citizens entitled to vote the right to elect the members of the German Bundestag. Through the general, free and equal election of members of the Bundestag, the German people directly express their political will. The people typically govern by majority (Art. 42(2) of the Basic Law) in the representative assembly thus elected. This assembly decides who will be Chancellor – and thus determines the Federal Government; the Chancellor, in turn, is accountable to this assembly. The election of members of the Bundestag is the source of state authority at the federal level of the state under the Basic Law – this state authority is periodically derived from the people through regular elections (Art. 20(2) of the Basic Law).

210

The right to vote is a citizen’s most important individual right to democratic participation that is guaranteed by the Basic Law (Art. 20(1) and (2) of the Basic Law). In the state order under the Basic Law, the election of members of the Bundestag is of great significance. In the absence of free and equal elections of the organ that has a decisive influence on the Federal Government and federal legislation, the constitutive principle of personal freedom remains incomplete. Citizens can therefore invoke the right to vote in constitutional complaint proceedings to challenge violations of democratic principles (Art. 38(1) first sentence, Art. 20(1) and (2) of the Basic Law). The right to equal participation in democratic self-determination (right to democratic participation) can also be violated by changes to the organisation of state authority that preclude an effective formation of the will of the people within the meaning of Art. 20(2) of the Basic Law so that the citizens can no longer rule through the will of the majority. The principle of representative power of the people may be violated if, in the system of organs under the Basic Law, the rights of the Bundestag are curtailed to a significant extent, leading to a loss of substance of democratic latitude for the Bundestag as the constitutional organ that has been directly formed in accordance with the principles of free and equal elections (cf. BVerfGE 89, 155 <171 f.>).

211

b) The essential element of the principle of democracy is the right of citizens to determine on free and equal terms, by means of elections and casting votes, decision-making on the persons in power and substantive issues of public authority. The right to free and equal participation in the exercise of public authority is rooted in human dignity (Art. 1(1) of the Basic Law). It forms part of the principles of German constitutional law that are beyond the reach of constitutional amendment by virtue of Art. 20(1) and (2) in conjunction with Art. 79(3) of the Basic Law.

212

aa) Insofar as decisions that are binding on citizens, in particular those concerning fundamental rights interferences, are taken in the public sphere, these decisions must be based on the freely formed will of the majority of the people. The order under the Basic Law rests on the premise that all people have intrinsic value and dignity and are capable of freedom. This is a directive under the rule of law on the basis of self-determination of the people in accordance with the will of the current majority and on the basis of freedom and equality (cf. BVerfGE 2, 1 <12>). Citizens thus cannot be subjected to a political authority that they cannot escape and in regard of which they cannot in principle influence, on free and equal terms, decisions on the persons in power and on substantive issues.

213

bb) The self-determination of the people through elections and casting votes on the basis of the principle of majority rule is constitutive for the state order under the Basic Law. It takes effect in a sphere of free formation of opinion in public and by means of the organised competition of political forces shaped by the relationship between a government that can be held accountable and the parliamentary opposition. The exercise of public authority is subject to the principle of majority rule, including the regular formation of a government that can be held accountable and an unhindered opposition that has a realistic chance of coming into government. In particular, when it comes to the election of the people’s representative assembly or top government officials, it must be possible to articulate a generalised majority will in terms of both the people to be elected and substantive issues and to have the election bring about key political decisions.

214

Different models can be used to satisfy this central democratic requirement. Under German electoral law, the constitutionally required representative rule of Parliament is achieved by distributing seats in a manner that reflects the will of the electorate in the closest proportional approximation. A majority decision of Parliament represents a majority decision of the people. Each member of Parliament is a representative of the people as a whole and therefore is a member of a representation of equals (Art. 38(1) of the Basic Law), who has received their mandate under equal conditions. The Basic Law requires that all citizens are free and equal in a legal sense (before the law). With regard to the principle of democracy, this means that each German citizen who is of legal age to vote and has not forfeited their right to vote is entitled to an equal share in the exercise of state power (cf. BVerfGE 112, 118 <133 f.>). The equality of citizens entitled to vote must also have effect at further stages of the democratic formation of the will, in particular with regard to the status of members of Parliament. Therefore, the right to equal participation in the process of parliamentary decision-making guaranteed by Art. 38(1) second sentence of the Basic Law forms part of the status of members of Parliament (cf. BVerfGE 43, 142 <149>; 70, 324 <354>; 80, 188 <218>; 96, 264 <278>; 112, 118 <133>).

215

Under presidential or majority systems, the specific design of the key democratic requirements may differ. Yet all representative democracies have one thing in common: the expression of an equitable and freely formed majority will – either in the constituencies or in the proportional assembly – through elections. The guiding decision of the majority of voters must be reflected in Parliament and Government; those defeated remain visible as a political alternative and work as the opposition in the sphere of free opinion-forming and in formal decision-making procedures with the chance of becoming the majority through subsequent elections.

216

c) The principle of democracy is not subject to a balancing of interests; it is inviolable (cf. BVerfGE 89, 155 <182>). The constituent power of the German people that adopted the Basic Law intended to set an insurmountable limit to any future political development. Constitutional amendments that affect the principles laid down in Arts. 1 and 20 of the Basic Law are impermissible (Art. 79(3) of the Basic Law). This so-called eternity clause means that the identity of the free constitutional order is beyond the reach of even the Constitution-amending legislator. Thus, the Basic Law does not just rest on the premise of Germany’s sovereign statehood, it also serves to guarantee it.

217

Whether the constituent power is also subject to this limitation due to the universal nature of dignity, freedom and equality, which would become relevant if the German people, in free self-determination, but continuing in the tradition of legality of the order under the Basic Law, adopted a new Constitution ([…]), need not be decided here. Under the order of the Basic Law, the fundamental principles that shape the state order and which follow from Art. 20 of the Basic Law – namely, democracy, rule of law, social state, republicanism, federalism and the substance of essential fundamental rights that is indispensable to ensure respect for human dignity – are, in their principal quality, beyond the reach of any amendment.

218

From the perspective of the principle of democracy, a violation of the constitutional identity enshrined in Art. 79(3) of the Basic Law is also an encroachment on the constituent power of the people. In this respect, the constituent power has not given the representatives and organs of the people a mandate that would allow them to alter Germany’s constitutional identity as they see fit. No constitutional organ has the power to change the fundamental constitutional principles enshrined in Art. 79(3) of the Basic Law. Respect for these principles is ensured by the Federal Constitutional Court. By way of the so-called eternity clause, the Basic Law reacts to historical experiences of a creeping erosion or sudden breakdown of the liberal substance of a democratic order. At the same time, it also makes clear that the German Constitution, in line with international developments, particularly since the establishment of the United Nations, has a universal core that is not subject to amendment by positive law.

219

2. The constitutional design of the principle of democracy is open to the objective of integrating Germany into a peaceful international and European order. The new structure of political rule that is thereby made possible is not automatically subject to the constitutional requirements that apply domestically, and therefore may not simply be measured against the specific manifestations of the principle of democracy in a contracting or member state. The authorisation to take part in European integration allows for a different form of formation of the political will than the one laid down by the Basic Law for the German constitutional order. This applies subject to the limit of the inviolable constitutional identity (Art. 79(3) of the Basic Law). The principle of democratic self-determination and of equal participation in the exercise of public authority is unaffected by the Basic Law’s mandate for peace and integration or the constitutional principle of openness to international law (cf. BVerfGE 31, 58 <75 f.>; 111, 307 <317>; 112, 1 <26>; Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 9, 174 <186>)

220

a) The German Constitution creates an opening in the German order to accommodate the peaceful cooperation of nations and European integration. Neither the integration into the European Union, when made on equal terms, nor the incorporation into peacekeeping systems such as the United Nations amount to a submission to foreign powers. Rather, this is a voluntary, mutual and equitable commitment, which safeguards peace and strengthens political latitude through joint, coordinated action. In protecting individual freedom – as self-determination of the individual –, it is not the aim of the Basic Law to promote a high-handedness that rejects any commitments and the ruthless enforcement of Germany’s interests. The same applies to the sovereign right to self-determination of the political community.

221

The constitutional state binds itself to other states that share the same basic values of freedom and equality and which likewise place human dignity and the principles of equal personal freedom at the centre of their legal orders. In an increasingly mobile society with connections that span borders, democratic constitutional states can only gain significant influence through meaningful cooperation that safeguards their self-interest as well as their common interests. Only those states that bind themselves [to a community] out of an understanding of the necessity of a peaceful reconciliation of interests and the possibilities of joint projects will gain the necessary scope for action to be able to shape the conditions of a free society in the future. The Basic Law reflects these considerations through its openness to European integration and to commitments under international law.

222

b) Following the experience of devastating wars, especially among the peoples of Europe, the Preamble to the Basic Law emphasises not only the moral basis of responsible self-determination, but also the will to promote world peace as an equal partner in a united Europe. This commitment is given specific shape through the authorisations to participate in European integration (Art. 23(1) of the Basic Law), to be a member of international organisations (Art. 24(1) of the Basic Law) and to enter into systems of mutual collective security (Art. 24(2) of the Basic Law), as well as through the prohibition of wars of aggression (Art. 26 of the Basic Law). The Basic Law promotes Germany’s participation in international organisations, a system of mutual and peaceful reconciliation of interests between the states and organised cooperation in Europe.

223

This understanding of sovereignty is clearly reflected in the aims enshrined in the Preamble to the Basic Law. The Basic Law departs from a self-sufficient and high-handed notion of sovereign statehood, affirming a view of state authority that sees sovereignty as ‘freedom organised and bound by international law’ ([...]). It breaks with all forms of political Machiavellianism and with a rigid notion of sovereignty, which until the beginning of the 20th century still considered the right to wage war – including wars of aggression – to be a self-evident right of sovereign states ([...]), although the convention signed at the Hague Peace Conference on 29 July 1899, while still affirming ius ad bellum, set in motion the gradual condemnation of the use of force between states.

224

By contrast, the Basic Law sets out the overarching political aims of safeguarding peace and overcoming the destructive antagonism of European states. According to this understanding, sovereign statehood represents a peaceful space and the order guaranteed therein is based on individual freedom and collective self-determination. The state is neither a myth nor an end in itself, but the historically evolved, globally recognised form of organisation of a political community with the capacity to act.

225

The constitutional mandate of realising a united Europe following from Art. 23(1) of the Basic Law and the Preamble ([…]) means, in particular for German constitutional organs, that participation in European integration is not a matter of political discretion. The Basic Law aims to foster European integration and a peaceful international order: accordingly, the Basic Law does not just set out a principle of openness to international law, but also to European integration.

226

c) While the Basic Law authorises the legislator to transfer far-reaching sovereign powers to the European Union, it is subject to the condition that European integration on the basis of the principle of conferral safeguards sovereign statehood and respects the constitutional identity of the Member States, and that Member States do not lose their ability to autonomously shape political and social conditions.

227

aa) The integration objective set forth in the Preamble and in Art. 23(1) of the Basic Law is without prejudice to the final nature of the political order of Europe. The Basic Law, in its Art. 23, authorises Germany’s participation in a supranational order of cooperation that promotes peace. There is no obligation to realise unrestricted democratic self-determination at the supranational level in the same manner that the Basic Law prescribes for the Federation and, through Art. 28(1) first sentence, for the Länder. Rather, the Basic Law allows for deviations from the organisational principles of domestic democracy that are necessary for a European Union based on the principle of sovereign equality of states and negotiated through international treaties.

228

Integration requires the will to jointly shape [the project] and the acceptance of an autonomous formation of the will of the community. However, integration into a liberal community does not require any submission that goes beyond the limits of constitutional law or is beyond the reach of constitutional review, nor does it require abandoning one’s own identity. The Basic Law does not authorise the organs acting on behalf of Germany to relinquish the right to self-determination of the German people in its manifestation of Germany’s sovereignty under international law by entering into a federation. Given that it would involve an irrevocable transfer of sovereignty to a new subject, this step can only be taken on the basis of the directly declared will of the German people.

229

bb) The applicable Constitution provides for a different path: It seeks Germany’s integration, on equal terms, into state systems of collective security such as the United Nations or NATO and its participation in the European project. Like Art. 24(1) of the Basic Law, Art. 23(1) highlights that the Federal Republic of Germany participates in the development of a European Union that is designed as an association of sovereign states and to which sovereign powers are transferred. The term ‘association’ encompasses a close and continuing organisation made up of sovereign states, which exercises public authority on the basis of the Treaties, but whose underlying order is subject to the direction of the Member States and in which the people – i.e., the citizens of the Member States – provide democratic legitimation.

230

This link is illustrated by Art. 23(1) first sentence of the Basic Law, which sets binding structural requirements for Germany’s participation in the development of the European Union. Under its Art. 23(1) third sentence, the Basic Law can be adapted to the development of the European Union; at the same time, the provision’s reference to Art. 79(3) of the Basic Law subjects this possibility to an absolute limit. The minimum standard protected by Art. 79(3) of the Basic Law must be upheld, including when Germany is integrated into supranational structures.

231

cc) The authorisation to transfer sovereign powers to the European Union or other supranational organisations allows for a shift of political power to international organisations. That said, the authorisation to exercise supranational competences was granted by the Member States of such an organisation. They remain masters of the Treaties on a permanent basis. In functional terms, the source of Community authority and the constitutive European Constitution are the states of the democratic peoples of Europe. The ‘Constitution of Europe’ – international treaty law or primary law – remains a derived basic order. It gives rise to a supranational autonomy that is far-reaching in everyday political life, but is always limited in its substance. Autonomy in this sense can only be understood – as is customary in the law of self-government – as an independent but derived power, i.e. one granted by other legal subjects. By contrast, sovereignty under international law and constitutional law requires independence from the will of others, especially for its constitutional foundations ([…]). It is irrelevant in this respect whether an international organisation has legal personality, i.e. whether it can take binding action as a subject in legal relationships governed by international law. What is relevant is the basic legal relationship between the international organisation and the member or contracting states that have created this organisation and granted it legal personality.

232

According to the authorisation in Art. 23(1) of the Basic Law in conjunction with the Preamble and Art. 20, Art. 79(3) and Art. 146 of the Basic Law, the European Union cannot have independent legitimation that is not derived from the will of others and therefore could constitute itself on some higher level.

233

d) The Basic Law does not authorise German state organs to transfer sovereign powers to the European Union in such a way that the European Union were authorised, in the independent exercise of its powers, to create new competences for itself. It prohibits conferring upon the European Union the competence to decide on its own competences (Kompetenz-Kompetenz) (cf. BVerfGE 89, 155 <187 f., 192, 199>; cf. also BVerfGE 58, 1 <37>; 104, 151 <210>). Under German constitutional law, far-reaching autonomy of the political power of the European Union brought about by the transfer of ever increasing competences and the gradual elimination of existing unanimity requirements or important rules regarding the sovereign equality of states can only be brought about by the freedom of action of a self-determined people. The Constitution requires that such steps towards further integration must be limited in scope by the act transferring such powers and must in principle be revocable. Regardless of the unlimited duration of the commitments made in the Treaties, other Member States or the autonomous power of the EU may not prevent [Germany from] leaving the association of European integration. Leaving does not amount to secession from a state, which would be problematic under constitutional law ([…]), but merely an exit from an association of sovereign states based on the principle of revocable voluntary commitment.

234

The principle of conferral is not only a principle of EU law (Art. 5(1) EC Treaty; Art. 5(1) first sentence and Art. 5(2) TEU – Lisbon; […]); it also incorporates constitutional principles of the Member States, just like the obligation of the EU to respect the national identities of the Member States (Art. 6(3) TEU; Art. 4(2) first sentence TEU – Lisbon). In this respect, the principle of conferral under EU law and the EU’s obligation to respect the constitutional identities of the Member States are manifestations in the Treaty of the fact that the EU’s authority is rooted in the constitutions of the Member States.

235

The Basic Law’s constitutional identity (Art. 79(3) of the Basic Law), in respect of which powers cannot be transferred and that thus is beyond the reach of European integration, corresponds to the obligation on the part of the EU to respect the constituent power of the Member States as masters of the Treaties. Within its jurisdiction, the Federal Constitutional Court may be called upon to review, where necessary, whether these principles are upheld.

236

e) The EU’s integration agenda must be sufficiently specific. Where citizens themselves are not called upon to make decisions, only those decisions for which Parliament can be held accountable by the citizens have democratic legitimation (cf. BVerfGE 89, 155 <351>). German constitutional organs may not grant blanket authorisations to the European Union for the exercise of public authority, especially where this would have direct binding effects within the domestic legal order (cf. BVerfGE 58, 1 <37>; 89, 155 <183 f., 187>). Insofar as the Member States design the Treaties in such a way that – while the principle of conferral continues to apply in principle – Treaty change can be effected solely or in decisive part by EU institutions without a ratification procedure, even when unanimity is required, Germany’s legislative bodies – in addition to the Federal Government – have a special responsibility in the context of participation, which in Germany must satisfy the requirements of Art. 23(1) of the Basic Law (responsibility with regard to European integration, Integrationsverantwortung) and, as the case may be, may be invoked in proceedings before the Federal Constitutional Court.

237

aa) Any integration into peacekeeping systems or into international or supranational organisations opens up the possibility that the organisations created, including and especially when their institutions act in accordance with their mandate, develop independently and thereby tend to reinforce their own political positions. An act authorising integration – like the Act of Approval in question here – can therefore, despite the principle of conferral, only ever outline a programme, within the limits of which political developments will occur that cannot be predetermined in every respect. If integration is sought, it must be expected that the EU’s institutions will form their will independently. Therefore, a tendency to maintain the acquis communautaire and to interpret competences in the sense of the implied powers doctrine under US law (cf. also International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 1949, p. 174 <182 ff.>) or in the sense of the effet utile rule under international law must be accepted ([…]). This forms part of the mandate for integration enshrined in the Basic Law.

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bb) Yet the trust placed in the constructive power of the mechanism of integration cannot be unlimited under constitutional law. If institutions change or adopt an expansive interpretation of primary law in the context of European integration, this creates a constitutionally significant tension with the principle of conferral and the constitutional responsibility with regard to European integration of the individual Member State. If unspecific legislative or administrative competences are transferred, or such competences may be developed dynamically or institutions may create new competences, expand them or extend their subject matters, they risk exceeding the predetermined integration agenda and acting outside their conferred powers. They are then on a trajectory which culminates in the power to determine their own Treaty foundations, granting them the competence to decide on their own competences. There is a risk that the essential principle of conferral and the conceptual responsibility with regard to European integration that is afforded to the Member States will be exceeded if EU institutions have unlimited power to decide on the interpretation of the Treaties without being subject to external scrutiny – even if such scrutiny is very limited in scope and understood to be used only in exceptional cases.

239

Constitutional law therefore prohibits entering into dynamic Treaty provisions providing blanket authorisations entirely or, where such provisions can still be interpreted in a way that safeguards national responsibility with regard to European integration, to at least enact suitable domestic safeguards ensuring the effective exercise of this responsibility. The Act of Approval and the accompanying legislation at the domestic level must thus be designed in such a way that European integration continues to adhere to the principle of conferral without granting the European Union the competence to decide on its own competences or violating the Member States’ constitutional identities that are beyond the reach of European integration, here specifically, that of the Basic Law. For cases that are on the boundary of what is still constitutionally permissible, the German legislator must, where necessary, enshrine effective safeguards in its authorising acts in order to ensure that the legislative organs can sufficiently discharge their responsibility with regard to European integration.

240

It must also be possible within Germany’s jurisdiction to assert its responsibility with regard to European integration and to ensure that the inviolable core of the Basic Law’s constitutional identity is upheld in the framework of a review on the basis of constitutional identity (identity review – Identitätskontrolle), in case the European Union’s exercise of competences results in the manifest overstepping of boundaries. This point was also emphasised in the oral hearing by the authorised representatives of the German Bundestag and the Federal Government (cf. BVerfGE 75, 223 <235, 242>; 89, 155 <188>; 113, 273 <296>). The Federal Constitutional Court has already opened up the possibility of review on the basis of the ultra vires doctrine (ultra vires review) for cases where Community or EU institutions overstep their limits in the exercise of competences. If no legal protection can be obtained at EU level, the Federal Constitutional Court reviews whether legal acts of the European institutions and bodies respect the limits of the sovereign powers granted to them in accordance with the principle of conferral, while observing the principle of subsidiarity under Community and EU law (Art. 5(2) EC Treaty; Art. 5(1) second and third sentence TEU – Lisbon) (cf. BVerfGE 58, 1 <30 f.>; 75, 223 <235, 242>; 89, 155 <188> regarding legal acts that go beyond these limits). Moreover, pursuant to Art. 23(1) third sentence in conjunction with Art. 79(3) of the Basic Law, the Federal Constitutional Court reviews whether the Basic Law’s constitutional identity – its inviolable core – is respected (cf. BVerfGE 113, 273 <296>). The Federal Constitutional Court exercises this jurisdiction, which follows from constitutional law, in accordance with the principle of the Basic Law’s openness to European integration. It therefore does not contradict the principle of sincere cooperation (Art. 4(3) TEU – Lisbon). There is no other way to safeguard the fundamental political and constitutional structures of sovereign Member States recognised by Art. 4(2) first sentence TEU – Lisbon. In this respect, the Constitution’s guarantee to uphold the national constitutional identity and the corresponding guarantee under EU law go hand in hand in the European legal sphere. The instrument of identity review makes it possible to examine whether acts of EU institutions violate the principles enshrined in Arts. 1 and 20 of the Basic Law, which are declared inviolable by Art. 79(3) of the Basic Law. This serves to ensure that the precedence of EU law only applies by virtue of and within the framework of the continued constitutional authorisation.

241

Both ultra vires review and identity review can lead to Community law – or, in the future, EU law – being declared inapplicable in Germany. In order to protect the proper functioning of the Community legal order, an application of constitutional law that is open to European law requires, with due regard to the legal precept reflected in Art. 100(1) of the Basic Law, that only the Federal Constitutional Court can make a finding of an ultra vires act or of a violation of Germany’s constitutional identity. An exhaustive list of proceedings in which the Federal Constitutional Court can conduct such review need not be decided here. Proceedings that are already provided for in the law can be considered for such review; this concerns abstract (Art. 93(1) no. 2 of the Basic Law) and specific (Art. 100(1) of the Basic Law) judicial review proceedings, Organstreit proceedings (Art. 93(1) no. 1 of the Basic Law), disputes between the Federation and the Länder (Art. 93(1) no. 3 of the Basic Law) and constitutional complaint proceedings (Art. 93(1) no. 4a of the Basic Law). The legislator could also create an additional type of proceedings before the Federal Constitutional Court that is specifically concerned with ultra vires and identity review, so as to give effect to the obligation of German state organs not to apply legal acts of the EU that exceed the EU’s competences or violate Germany’s constitutional identity in individual cases.

242

If the Treaties determine the EU’s competences in a manner that can in principle be approved, but these competences can then be extended beyond the possibilities arising from an interpretation under the effect utile principle or from the implied powers doctrine, that is, if the substance of the competences only becomes clear once specific legal acts have been adopted at EU level and decision-making procedures can be changed autonomously by EU institutions, then Germany’s participation in the EU requires that adherence to the constitutional requirements is ensured at the domestic level. The ratification of international treaties that govern the political relations of the Federation (Art. 59(2) of the Basic Law) generally guarantees the constitutionally required involvement of the legislative organs in foreign affairs (cf. BVerfGE 104, 151 <194>) and provides for a domestic order giving effect to the treaty law agreed by the executive (cf. BVerfGE 99, 145 <158>; Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts – BVerwGE 110, 363 <366>).

243

European integration is subject to the qualified requirement of a statutory provision (Gesetzesvorbehalt) as laid down in Art. 23(1) second sentence of the Basic Law, according to which sovereign powers may only be transferred by a law and with the consent of the Bundesrat. In order to safeguard responsibility with regard to European integration and protect the constitutional framework, this must be interpreted in such a way that any change in the wording of the Treaty foundations of European primary law is subject to the requirement of a statutory provision. The Federation’s legislative organs thus also exercise their political responsibility, comparable to the responsibility exercised during the ratification procedure, in the case of the simplified revision procedure or other minor amendments for changes in competences that have already been agreed upon but require further determination by legal acts and changes of provisions concerning decision-making procedures. In this respect, legal protection that is in line with the particular circumstances of treaty ratification is ensured.

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3. The European Union must adhere to democratic principles, both with regard to the type and scope of the transfer of sovereign powers and the organisational and procedural design of the autonomous exercise of its powers (Art. 23(1), Art. 20(1) and (2) in conjunction with Art. 79(3) of the Basic Law). European integration may neither lead to an erosion of the democratic system of government in Germany (see a) below), nor may the supranational public authority fail to adhere to basic democratic requirements (see b) below).

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a) German constitutional organs are subject to a permanent responsibility with regard to European integration. With regard to the transfer of sovereign powers and the design of European decision-making procedures, this responsibility serves to ensure that the political systems of both Germany and the European Union adhere to democratic principles within the meaning of Art. 20(1) and (2) in conjunction with Art. 79(3) of the Basic Law.

246

The election of the members of the German Bundestag by the people can only serve its vital role in the system of federal and supranational interdependence of power if the Bundestag, which represents the people, and the Federal Government, which holds the support of the Bundestag, continue to have a formative influence on political developments in Germany. This is the case if the Bundestag retains for itself those tasks and powers of substantial political significance or if the Federal Government, which is politically accountable to the Bundestag, has decisive influence on European decision-making procedures (cf. BVerfGE 89, 155 <207>).

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aa) Internal federalisation and external supranationalisation can open up new possibilities for citizen participation. They strengthen cohesion of smaller or bigger entities and result in better opportunities for peaceful reconciliation of interests among regions and states. Federalist or supranational interdependencies create opportunities for action which would otherwise be subject to practical or territorial limits, and facilitate the peaceful reconciliation of interests. At the same time, they make it more difficult to form an effective majority will that is directly derived from the people (Art. 20(2) first sentence of the Basic Law). There is less transparency when it comes to attributing decisions to specific decision-makers, with the consequence that citizens can no longer rely on perceptible relationships of responsibility to guide their votes. That is why the principle of democracy sets substantive limits to the transfer of sovereign powers which go beyond the limits that follow from the inviolability of the constituent power and state sovereignty.

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bb) In the applicable constitutional framework, the principle of democracy requires that sovereignty be respected in a manner that is open to European integration and international law, as required by the Basic Law. This does not mean, per se, that the state must retain a specific amount or specific types of sovereign powers that can be predetermined. Germany’s participation in the development of the European Union as permitted by Art. 23(1) first sentence of the Basic Law also encompasses a political union, in addition to an economic and monetary union. The term ‘political union’ refers to the joint exercise of public authority, including legislative authority, that reaches into the traditional core areas of the state’s sphere of competence. This forms part of the idea of European peace and unity, especially with regard to the coordination of cross-border aspects of life and the guarantee of a common economic and legal area in which EU citizens can freely develop (Art. 3(2) TEU – Lisbon).

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cc) However, European integration on the basis of a Treaty-based union of sovereign states cannot be realised in such a way that the Member States are left without sufficient political latitude to address economic, cultural and social conditions. This applies in particular to matters that shape the citizens’ living conditions and, above all, their private area of autonomy and of personal and social security, which is protected by fundamental rights; it also applies to political decisions that are especially reliant on prior cultural, historical and linguistic concepts and unfold in the sphere of party politics and of parliamentary decision-making, in the context of political discussion. Essential areas of democratic life in this sense include citizenship, the monopoly on the use of military and non-military force, government revenue and expenditure including borrowing, and the prerequisites for interference relevant for the realisation of fundamental rights, especially when it comes to intrusive fundamental rights interferences such as deprivation of liberty under criminal law or confinement measures. These essential areas also include cultural issues such as linguistic matters, the organisation of family and education, the regulation of freedom of expression, freedom of the press and freedom of assembly and relations with religions and beliefs.

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dd) Democracy does not just mean preserving formal organisational principles (cf. BVerfGE 89, 155 <185>) or integrating different interest groups. First and foremost, democracy needs properly functioning public opinion that keeps a focus on the central political direction and the periodic allocation of top political posts in the competition between government and opposition. It is this public opinion that makes the alternatives for elections and votes visible in the first place and also continuously reminds the public of these alternatives for specific policy decisions, so that the political will of the people remains constantly present and effective through the actions of political parties, in which citizens may participate, and in the public information sphere. Art. 38 and Art. 20(1) and (2) of the Basic Law also protect the link between political decisions and the majority will expressed through elections and the dualism between government and opposition derived therefrom in a system of diverse and competing parties and the shaping of public opinion which observes and scrutinises the system.

251

Even if, due to the great successes of European integration, a common European public whose different elements interact with each other is clearly growing among like-minded groups in the respective states (cf. in this regard BVerfGE 89, 155 <185>; [...]), it cannot be overlooked that the public perception of substantive issues and political leaders remains limited, to a considerable extent, to the nation-state and linguistic, historical and cultural patterns of identification. Both the principle of democracy and the principle of subsidiarity, which is likewise structurally mandated by Art. 23(1) first sentence of the Basic Law, therefore require that the transfer of sovereign powers to the European Union and its exercise of these powers be limited in substance in a foreseeable manner, particularly in key political matters concerning the sphere of personal development and the social design of living conditions. The transfer and exercise of powers concerning these matters should be limited to that which is necessary for cross-border coordination.

252

Matters that have always been considered crucial for the ability of a constitutional democracy to govern itself are decisions concerning substantive and procedural criminal law (see (1) below), the monopoly on the use of force exercised by the police domestically and by the armed forces internationally (see (2) below), basic fiscal decisions concerning government revenue and expenditure – the latter especially in the context of social policy (see (3) below), living conditions shaped by the social state (see (4) below) and decisions that are especially significant in cultural terms, such as decisions concerning family law, the school and education system and relations with religious communities (see (5) below).

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(1) The criminal justice system relies on cultural concepts that have developed over time and are shaped by linguistic understanding, and on the alternatives formed in the deliberative process that determines the respective public opinion, both with regard to the prerequisites for criminal liability and the notion of what constitutes fair and adequate criminal proceedings. The relevant case-law of the European Court of Human Rights regarding legal guarantees in criminal proceedings illustrates both the common ground shared by European nations and the differences between them ([…]). Yet the penalisation of social conduct can only be derived from the values and moral premises shared across Europe to a limited extent. In particular, questions of what conduct is punishable, the weight of different legal interests and the purpose and severity of penalties should be decided by a democratic decision-making process (cf. BVerfGE 120, 224 <241 f.>). In this area, which is significant for fundamental rights, a transfer of sovereign powers that goes beyond intergovernmental cooperation may only lead to harmonisation for specific cross-border matters under narrowly defined conditions; substantial latitude for the Member States must generally be preserved (cf. BVerfGE 113, 273 <298 f.>).

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(2) The Basic Law sets similar limits to decisions concerning the deployment of the Bundeswehr (Federal Armed Forces). Deployment of the armed forces abroad is only allowed for self-defence and in systems of mutual collective security (Art. 24(2) of the Basic Law); any deployment requires the consent of the German Bundestag (cf. BVerfGE 90, 286 <381 f.>; 100, 266 <269>; 104, 151 <208>; 108, 34 <43>; 121, 135 <153 f.>; established case-law). The Bundeswehr is an ‘army of Parliament’ (Parlamentsheer; BVerfGE 90, 286 <382>), whose deployments must be decided by Parliament as the organ representing the people (cf. BVerfGE 90, 286 <383 ff.>). Whether the armed forces are deployed is significant for the individual legal interests of soldiers and other persons affected by military measures, and deployment carries the risk of serious entanglements.

255

Even if the European Union were developed into a regional peacekeeping system of mutual collective security within the meaning of Art. 24(2) of the Basic Law, any supranationalisation that entails the precedence of application [of EU law] is impermissible with regard to specific deployments of the German armed forces due to the requirements of peace and democracy, which, in this constellation, take precedence over the mandate for European integration in Art. 23(1) of the Basic Law. The constitutive requirement of a parliamentary decision regarding the international deployment of the armed forces is beyond the reach of European integration. That said, constitutional law does not pose an insurmountable limit for the technical integration of European military missions through joint command centres, the creation of a joint pool of forces or the coordination and harmonisation of joint European arms procurements. It is only the decision on the respective specific deployment in each case that requires the constitutive consent of the Bundestag.

256

(3) If a supranational organisation were able to substantially determine the type and amount of levies payable by citizens, this would constitute a transfer of the Bundestag’s budgetary powers that violates the substantive content of the principle of democracy and the right to vote in elections to the German Bundestag. The German Bundestag must be accountable to the people when it comes to determining the overall financial burden imposed on citizens. This also applies to essential government expenditures. In this area, it is precisely the responsibility for social policy decisions that requires such decisions be taken in a democratic decision-making process that citizens want to influence through free and equal elections. Budgetary sovereignty is the locus for the conceptual political decisions regarding the relationship between financial burdens and benefits granted by the state. That is why parliamentary deliberations on the budget – including the level of borrowing – take the form of a general political debate. Not every European or international obligation that affects the budget jeopardises the Bundestag’s latitude in its capacity as legislator deciding on budgetary matters. The opening of the legal and social order towards European integration sought by the Basic Law involves an adjustment to requirements and obligations that the legislator deciding on budgetary matters must include in its own planning as factors that cannot be directly influenced. What is decisive, however, is that the Bundestag retains overall responsibility, with sufficient political latitude regarding revenue and expenditure.

257

(4) The principle of the social state requires the state to ensure a fair social order (cf. BVerfGE 59, 231 <263>; 100, 271 <284>). The state is accorded broad latitude in meeting this obligation, consequently, specific constitutional obligations to take action have been derived from this principle only in a few cases. The state need only establish for its citizens the minimum requirements for a life in accordance with human dignity (cf. BVerfGE 82, 60 <80>; 110, 412 <445>). The principle of the social state sets the state a task, but does not determine the specific means by which it is to be realised.

258

The constitutional requirements regarding social integration or a ‘social union’ are very limited. It is true that Art. 23(1) first sentence of the Basic Law provides that Germany’s participation in European integration depends, inter alia, on the European Union’s commitment to social principles. The Basic Law does not just undertake to defend the German state’s social tasks against supranational control, it also intends to bind European public authority to social responsibility with regard to the tasks transferred to it ([…]). The institutions of the European Union are also subject to the principle that the social state must be given specific shape in political and legal terms in order to be effective.

259

Thus, German legislative bodies must take all fundamental social policy decisions on their own authority. In particular, ensuring minimum living standards for the individual, a task of the state that follows not only from the principle of the social state, but also from Art. 1(1) of the Basic Law, must primarily remain a task of the Member States, even though coordination up to and including gradual approximation is not ruled out. This corresponds to the EU’s limited ability, both legally and de facto, to create structures of the social state.

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(5) Democratic self-determination is also particularly dependent on the ability to realise oneself in one’s own cultural sphere, especially with regard to decisions concerning the school and education system, family law, language, parts of the media landscape and the status of churches, religious and ideological communities. The already-recognisable activities of the EU in these areas encroach upon aspects of society that are the primary responsibility of the Member States and their entities. The design of curricula and educational contents and the structure of the school system are fundamental political decisions that have a strong link to the cultural roots and values of the individual state. Just like the law governing family relations and decisions concerning language and the inclusion of religion and belief in public life, the design of the school system and education involves, to a significant extent, beliefs and values that have evolved over time and are rooted in specific historical traditions and experiences. In these areas, democratic self-determination requires that the respective political community connected by such traditions and beliefs continues to provide democratic legitimation.

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b) The clause set out in Art. 23(1) first sentence of the Basic Law that protects the structural principles of the state establishes a limit to the fundamental national objective of participation in the European Union: its basic structures must correspond to the core constitutional principles that are protected from amendment, even by the Constitution-amending legislator, under Art. 79(3) of the Basic Law. With regard to transferred powers, institutions and decision-making procedures, the design of the European Union must adhere to democratic principles (Art. 23(1) first sentence of the Basic Law). The specific requirements regarding democratic principles depend on the scope of the transfer of sovereign powers and the degree of autonomy of European decision-making procedures.

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aa) The constitutional requirements arising from the principle of democracy regarding the organisational structure and decision-making procedures of the European Union depend on the extent to which sovereign tasks are transferred to the EU and on the level of political autonomy in exercising the transferred sovereign powers. Increased integration can be unconstitutional where the level of democratic legitimation does not keep pace with the extent and force of supranational power. As long as and insofar as the principle of conferral is upheld in an association of sovereign states with clear elements of executive and governmental cooperation, it is in principle sufficient that legitimation is derived from the Member States’ national Parliaments and Governments, complemented and underpinned by the directly elected European Parliament (cf. BVerfGE 89, 155 <184>).

263

If, by contrast, the European Union were to evolve into a federal state, entailing the surrender of national sovereignty – which, in Germany, would require a free decision of the people that goes beyond the current scope of the Basic Law – adherence to democratic requirements that fully correspond to the requirements regarding democratic legitimation of a state-organised entity would be necessary. This level of legitimation could then no longer be prescribed by the national constitutional orders.

264

If the scope of competences, the political leeway and the degree of independent policy formulation of EU institutions reached a degree corresponding to that of the federal level in a federalist state, for example, because the legislative competences essential for democratic self-determination were primarily exercised at EU level, there would then be a structural democratic deficit that is untenable under Art. 23 in conjunction with Art. 79(3) of the Basic Law. If, in the course of European integration, a mismatch arises between the type and scope of the exercised sovereign powers and the level of democratic legitimation, it will be incumbent upon the Federal Republic of Germany, due to its responsibility with regard to European integration, to take steps to bring about change and, in extreme circumstances, even refuse to further participate in the European Union.

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bb) In order to safeguard democratic principles, it may be required to clearly highlight the principle of conferral in the Treaties and their application and interpretation so as to preserve a balance of political forces in Europe between the Member States and the European Union, which is a precondition for the allocation of sovereign powers in the association of states.

266

This notwithstanding, with regard to the European Union’s adherence to democratic principles, Art. 23(1) first sentence of the Basic Law does not require ‘structural congruence’ ([…]), let alone full equivalence, between the institutional order of the European Union and the domestic order laid down by the Basic Law’s principle of democracy for Germany. Yet a democratic design that adequately reflects the status and function of the EU is required ([…]). It follows from the spirit and purpose of the structural standards clause (Struktursicherungsklausel) that the Basic Law’s principle of democracy does not have to be realised at European level in the same way that was required in the 1950s and early 1960s for supranational organisations within the meaning of Art. 24(1) of the Basic Law ([…]).

267

The principle of democracy is generally open to the requirements of a supranational organisation, not to adapt its content to the realities of the respective political structure, but to maintain constant effectiveness under changed circumstances (cf. BVerfGE 107, 59 <91>). Thus, Art. 23(1) first sentence of the Basic Law rests on the presumption that in the European Union democratic principles cannot be realised in the same way as under the Basic Law (cf. BTDrucks 12/3338, p. 6).

268

In modern territorial states, the self-determination of a people is primarily given effect through the election of state organs that exercise public authority. These organs must be formed through the majority decisions of citizens, who can influence the basic political direction – in terms of both officials and policies – on a recurring basis. A free and open public opinion and the political opposition must be able to critically monitor the essential elements of the decision-making process and attribute them to those responsible – in most cases, this will be the government (cf. Art. 20(2) of the Basic Law; BVerfGE 89, 155 <185>; 97, 350 <369>; […]).

269

The practical manifestations of democracy give specific shape to these requirements in compliance with the principles of free and equal elections, either in the form of a Parliament as the organ representing the people, which is then responsible for the formation of a government – as in the United Kingdom, Germany, Belgium, Austria and Spain – or through a presidential system with an executive leader who is also directly elected – as in the United States, France, Poland and Bulgaria. The will of the people can be expressed through the election of a representative body (Parliament), through the election of an executive leader (President) and through majority decisions in referendums on specific issues. Presidential systems like those in the United States and France are representative democracies with dualist structures, while the United Kingdom and Germany have representative democracies with parliamentary monism. In Switzerland, parliamentary monism is complemented by strong elements of direct democracy, which also partially assume the function of a parliamentary opposition ([…]).

270

In a democracy, the people must be able to determine the composition of the government and the legislator in free and equal elections. This core principle can be complemented by plebiscites concerning specific issues, which could also become possible in Germany through an amendment to the Basic Law. In a democracy, the decision of the people is at the centre of the formation and assertion of political power: every democratic government knows the fear of losing power by being voted out. In its judgment concerning the prohibition of the Kommunistische Partei Deutschlands (KPD) from 1956, the Federal Constitutional Court has described democracy as a ‘battle for political power’, governed by procedural rules, with the goal of gaining a majority. As the Court stated, this concerns the actual majority will of the people determined in carefully regimented procedures and preceded by free discussion. The Court further considered it vital for the democratic organisation of state power that majorities ‘could change at any time’, and that a multi-party system and the right ‘to organised political opposition’ existed (cf. BVerfGE 5, 85 <198 f.>).

271

The European Union also recognises this core democratic concept as a common European constitutional tradition (cf. Art. 3(1) of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms of 20 March 1952 <Protocol No. 1 to the Convention> <BGBl 2002 II p. 1072>; CSCE, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE; […]), imposes corresponding structural requirements on the Member States and declares their actual continued effectiveness a precondition for participation in European integration (Art. 6(1) TEU; Art. 2 TEU – Lisbon; cf. already Conclusions of the Presidency of the European Council in Copenhagen, 21 and 22 June 1993, Bulletin EU 6-1993, I.13; Agenda 2000, COM(97) 2000 final, Part I, p. 52). To the extent that the European Union only exercises derived public authority, however, it need not fully satisfy the requirements itself. Unlike a federalised state, the Council at EU level does not serve as a second chamber, but as the representative body of the masters of the Treaties; thus, it is not formed in accordance with the principle of proportional representation, but in accordance with the principle of sovereign equality of states. The European Parliament, as a representative body of the people directly elected by EU citizens, is an additional, independent source of democratic legitimation (cf. BVerfGE 89, 155 <184 f.>). The European Parliament is a representative body of the people in a supranational community and, as such, is characterised by a limited will for unity, its composition cannot and need not correspond to the requirements arising at state level from the right to equal suffrage of all citizens in elections. The Commission is a special supranational institution that likewise does not have to fully satisfy the requirements arising for a government that is fully accountable to either Parliament or the majority decision of voters, given that the Commission is not bound by the will of the electorate in the same way.

272

As long as the European order of competences is governed by the principle of conferral, with cooperative decision-making procedures preserving the states’ responsibility with regard to European integration, and as long as there is an appropriate balance between the competences of the EU and the competences of the states, democracy in the European Union cannot and need not be equivalent to democracy in a state. Rather, the European Union is free to seek its own modes of democratic enhancement through additional, new forms of transparent or participatory political decision-making procedures. It is true that the mere deliberative participation of citizens and civil society organisations in political power – direct inclusion in the deliberations of the institutions responsible for making binding political decisions – cannot replace the legitimation derived from elections and votes. However, such elements of participatory democracy can serve a complementary function with regard to the legitimation of European public authority. Above all, this concerns forms of legitimation in which citizens can engage in a direct, specialised and substantive manner, such as providing EU citizens and relevant associations (Art. 11(2) TEU – Lisbon: ‘representative associations’) with suitable opportunities of articulating their views. Such forms of decentralised participation based on the division of labour, which have the potential to increase legitimation, also serve to give effect to the primary relationship of democratic legitimation through representation.

II.

273

The Treaty of Lisbon and the Act of Approval satisfy the constitutional requirements as specified in the reasons (see 1. below). The Act Amending the Basic Law (Articles 23, 45 and 93) is also not objectionable under constitutional law (see 2. below). The Act Strengthening the Rights of the Bundestag and of the Bundesrat in Matters Concerning the European Union does not satisfy the requirements arising from Art. 38(1) in conjunction with Art. 23(1) of the Basic Law and must be amended to bring it in conformity with the Constitution before the Treaty is ratified (see 3. below).

274

1. The Act of Approval of the Treaty of Lisbon is compatible with the requirements of the Basic Law, in particular, with the principle of democracy. The right to vote under Art. 38(1) of the Basic Law has not been violated. Through the free and equal election of the members of the German Bundestag and corresponding elections in the Länder, the German people continue to determine essential political matters at the federal and Land levels. With the election of the German members of the European Parliament, the right to vote of German citizens is supplemented by an additional possibility to participate in European institutions, which, under the principle of conferral, provides sufficient democratic legitimation.

275

With regard to the scope of transferred powers and the degree of autonomy of European decision-making procedures, the level of legitimation of the European Union ultimately still satisfies the constitutional requirements, provided that the procedural safeguards for the principle of conferral are strengthened beyond what is required by the Treaties (see a) below). By ratifying the Treaty of Lisbon, the Federal Republic of Germany neither transfers the constituent power, which the constitutional organs may not surrender, nor does it relinquish its sovereignty (see b) below). The German Bundestag retains tasks and powers of sufficient weight (see c) below).

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a) With its current state of integration, the design of the European Union has not reached a level, even after the entry into force of the Treaty of Lisbon, that corresponds to the level of legitimation of a state democracy.

277

Germany’s participation in the European Union is not a transfer of the federalist model to the European level, but an expansion of the constitutional federalist model to include a supranational, cooperative dimension. This conclusion is not limited to the perspective of the Basic Law. The Treaty of Lisbon also declined to adopt the concept of a European federal constitution in which a European Parliament would take centre stage as the representative body of the new federation thereby constituted. An intent to establish a new state cannot be ascertained. Nor does the European Union correspond to the federal level in a federalist state when measured against the principles of free and equal suffrage and the requirements regarding strong majority rule. Thus, the Treaty of Lisbon does not alter the fact that the Bundestag, as the representative body of the German people, is at the centre of a democratic system that is linked in a variety of ways.

278

The European Union adheres to democratic principles because from a qualitative point of view, the organisation of its functions and power is not equivalent to that of a state. The claim at the heart of the applicants’ and complainants’ challenge – that the Treaty of Lisbon replaces the subject of democratic legitimation – is incorrect. Even as an organisation with legal personality, the European Union remains the project of sovereign democratic states. Thus, in light of the current state of integration, it is not necessary to structure the EU’s system of institutions democratically in a manner that is state-equivalent. Given the continued applicability of the principle of conferral, and provided that the competences newly granted by the Treaty of Lisbon are interpreted in accordance with the Treaty’s wording, spirit and purpose, the composition of the European Parliament does not have to be equal such that the differences in the votes of EU citizens based on the respective populations of the Member States would have to be disregarded.

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aa) The democratic rule of equal representation under electoral law (‘one man, one vote’) only applies within a people and not in a supranational representative body that – although it now particularly emphasises EU citizenship – continues to represent the different peoples bound to one another by the Treaties.

280

As measured against the requirements applicable to a constitutional state, the European Union, even after the entry into force of the Treaty of Lisbon, lacks a political decision-making body that is elected equally by all EU citizens and can uniformly represent the will of the people. There is also a corresponding absence of a system of governance in which the formation of government can be based on the will of a European majority such that it can be traced back to free and equal electoral decisions and genuine competition between government and opposition that can be followed by citizens can emerge. Even after the rewording of Art. 14(2) TEU – Lisbon, the European Parliament is not a representative body of a sovereign European people, despite the inference to this effect that appears in Art. 10(1) TEU – Lisbon. This is reflected by the fact that the European Parliament, as a representative body, is formed through national quotas of members and thus is not designed as a uniform representative body of EU citizens in accordance with the principle of equal suffrage.

281

Nor does the structure of the competences of the European Union in the Treaty of Lisbon give rise to independent, popular sovereignty of all EU citizens. In the event of a close decision as between competing political directions in the European Parliament, there is no guarantee that the majority of votes cast represents a majority of EU citizens. The formation of an independent government through the European Parliament that is equipped with powers usually held by state governments would therefore raise fundamental concerns. There could be a scenario where, based on the representation ratio, a numerical minority of citizens could govern through a majority of members of the European Parliament against the political will of an opposition that represents a majority of EU citizens, but nevertheless lacks a parliamentary majority. It is true that the principle of equal suffrage only ensures a representation of the will of the people that is as accurate as possible when applied under a strict system of proportional representation. But even in systems of majority voting, there is at least a sufficient guarantee of equality of the electoral votes with regard to the value assessed to each vote and the prospects of success. This guarantee is lacking whenever a considerable proportion of seats is allocated according to quotas.

282

bb) For a free democratic basic order like the one established by the Basic Law, the equality of all citizens in exercising their right to vote is one of the essential foundations of the state order (cf. BVerfGE 6, 84 <91>; 41, 399 <413>; 51, 222 <234>; 85, 148 <157 f.>; 99, 1 <13>; 121, 266 <295 f.>).

283

The principle of equal suffrage is not unique to the German legal order. It forms part of the legal principles binding on all European states. Art. 3 of Protocol No. 1 to the European Convention on Human Rights guarantees the right to participate in elections for the legislative body of a Contracting State. This means that citizens are guaranteed the right to vote and to stand for election. It is true that the Contracting States have a wide margin of appreciation with regard to the details of their electoral law, with a view to, inter alia, national particularities and historical developments. However, the European Court of Human Rights has concluded that the guarantee of elections to ‘ensure the free expression of the opinion of the people’ essentially implies the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election. The European Court of Human Rights expressly views this equality of treatment to include the value of each individual vote, while allowing for exceptions with respect to equal weight as regards the outcome of the election or equal chances of victory of all candidates (ECtHR, Judgment of 2 March 1987, No. 9267/81, Mathieu-Mohin and Clerfayt v. Belgium, para. 54; Judgment of 7 February 2008, No. 39424/02, Kovach v. Ukraine, para. 49; regarding the application of Art. 3 of Protocol No. 1 to the European Parliament as ‘legislative body’: ECtHR, Judgment of 18 February 1999, No. 24833/94, Matthews v. the United Kingdom, para. 40 […]).

284

cc) In light of the foregoing, the European Parliament remains a representative body of the peoples of the Member States [rather than of EU citizens] due to the use of national quotas. The degressively proportional composition of the European Parliament provided for in Art. 14(2) subpara. 1 third sentence TEU – Lisbon falls somewhere in between the principle of sovereign equality of states under international law and the state principle of equal suffrage. Under the provisions of primary law, which specify the principle of degressive proportionality to some extent, the maximum number of MEPs is 750 (plus the President); no Member State is allocated more than 96 seats or less than six seats (Art. 14(2) subpara. 1 second to fourth sentence TEU – Lisbon). This means that the vote of a citizen of a less populous Member State may have twelve times the weight of the vote of a citizen of a more populous Member State.

285

On 11 October 2007, the European Parliament submitted a draft decision anticipating the future application of Art. 14(2) subpara. 2 TEU – Lisbon (European Parliament resolution on the composition of the European Parliament, OJ 2008 C 227 E/132, Annex 1). The intergovernmental conference gave its assent to the Draft Decision (cf. Declaration on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament). The decision can only be adopted by the European Council after the Treaty of Lisbon has entered into force. According to the resolution, the principle of degressive proportionality is to be applied in such a way that the minimum and maximum number of seats allocated to the Member States are fully utilised, the number of seats allocated to a Member State are roughly proportional to the size of its population and, for more populous Member States, each member of the European Parliament represents a greater number of citizens than each member from a less populous Member state (Art. 1 Annex 1 Draft Decision). 96 seats are allocated to the Federal Republic of Germany (Art. 2 Annex 1 Draft Decision). Under the Draft Decision, an MEP elected in France would represent approximately 857,000 EU citizens, which would be equal to the citizens represented by an MEP elected in Germany, also approximately 857,000. By contrast, an MEP elected in Luxembourg would only represent a tenth of that number – approximately 83,000 EU citizens, while one elected in Malta would only represent a twelfth (approximately 67,000); for a medium-sized country such as Sweden, each elected MEP would represent approximately 450,000 EU citizens from their country in the European Parliament ([…]).

286

In federalised states, such pronounced imbalances are usually only acceptable in the second parliamentary chamber – in Germany and Austria, this second chamber corresponds to the Bundesrat; in Australia, Belgium and the United States, the second chamber is the Senate. Such imbalances are not tolerated in the main body representing the people, as it otherwise cannot represent the people in accordance with the principle of equality following from the principle of personal freedom. Yet the design of electoral law in the European Union does not necessarily contradict Art. 10(1) TEU – Lisbon, which provides that the functioning of the Union is to be founded on representative democracy; this is because the democracies of the Member States, with their respective majorities and key policy decisions, are represented both in the Council and in the Parliament at EU level. It thus only amounts to an indirect representation of the hierarchies of political power in the Member States. For this reason, it would be viewed as inadequate if, due to a stronger emphasis on the principle of equal sufferage, a small Member State were represented by a single MEP in the European Parliament. The states affected argue that a representative reflection of national majorities would no longer be possible at the EU level. Consequently, ‘represented’ within the meaning of Art. 10(1) TEU – Lisbon does not refer to representation of the European people as a whole, but rather that of the peoples of Europe organised as states with their national power hierarchies achieved through democratic and equal elections and shaped by party politics.

287

This consideration also explains why representation in the European Parliament is not tied to the equality of EU citizens (Art. 9 TEU – Lisbon), but to nationality – a criterion on the basis of which the EU is absolutely prohibited from engaging in differentiation. In order for political projects like the economic union to be successful, it has been a central idea of European integration since its foundation to prohibit or restrict discrimination on grounds of nationality (Art. 12, Art. 18 EC Treaty, Art. 21 TFEU). The conception of the internal market is based on the belief that it makes no difference where a good or service originates, where an employee or entrepreneur is from or where investments come from. Yet Art. 14(1) subpara. 1 third sentence TEU – Lisbon provides that this same criterion of nationality is decisive for allocating possibilities of exercising political influence to the citizens in the European Union. The European Union thus finds itself in a contradiction with regard to the foundations of its self-image as a citizens’ union, which can only be explained by the character of the European Union as an association of sovereign states.

288

While the democracy of the European Union comes close to the model of a federalised state, if measured against the principle of representative democracy it would be viewed as considerably over-federalised. The principle of sovereign equality of states is tied to national voting rights that are equal, in principle, when it comes to the composition of the European Council, the Council, the Commission and the Court of Justice of the European Union. Even if the European Parliament were elected in accordance with the principle of equal suffrage, this structure would be a considerable obstacle to the implementation, in terms of both persons in power and subject matters, of a representative, parliamentary majority will. For example, even after the entry into force of the Treaty of Lisbon, the judges of the Court of Justice of the European Union will still be selected according to the principle of ‘one state, one judge’ and in a process that is determined by the states, irrespective of their different population sizes. The functioning of the European Union is also characterised by the influence of national governments and the competence for administration and policy of the Commission, even though the participatory rights of the European Parliament have been strengthened overall. The introduction of a veto right for central areas of legislation is a logical further development of parliamentary influence within this system. With the ordinary legislative procedure stipulated in the Treaty of Lisbon, something that has been de facto determinative in many fields as the law currently stands now becomes the norm: pursuant to the co-decision procedure, a directive or regulation cannot be adopted against the will of the European Parliament.

289

dd) When measured against requirements of democracy applicable within a state, European public authority has a [democratic] deficit, which cannot be offset by other provisions of the Treaty of Lisbon and therefore cannot be justified.

290

(1) The European Union tries to compensate for its over-federalised structure primarily by strengthening participation and transparency rights of citizens and associations and by enhancing the role of national Parliaments and of the regions. The Treaty of Lisbon strengthens these procedural elements of participatory democracy. In addition to supplementary elements of participatory democracy, such as the requirement to let EU citizens and ‘representative’ associations communicate their views, the Treaty of Lisbon also provides for elements of associative and direct democracy (Art. 11 TEU – Lisbon). These include dialogue of EU institutions with ‘representative’ associations and civil society, as well as the European citizens’ initiative. This initiative enables citizens to petition the Commission, in a non-binding manner, to make suitable legislative proposals on political issues. A quorum of at least one million EU citizens who must be nationals of a ‘significant number of Member States’ is required (Art. 11(4) TEU – Lisbon). The citizens’ initiative is limited to matters that fall within the competence of the Commission and must be fleshed out under secondary law by means of a regulation (Art. 24(1) TFEU). The European citizens’ initiative is also seen as a measure promoting the education of a European public, as called for in the Laeken Declaration.

291

(2) In an attempt to justify the unequal elections to the European Parliament, several actors – including the Federal Government (cf. BTDrucks 16/8300, p. 133 <135 f.>) – make reference to the other source of legitimation of European public authority: the involvement of the Council, which uses weighted votes for majority decisions, in the legislative procedure. This so-called double qualified majority is designed to avoid votes against a majority of inhabitants in the Council. Thus, in order to achieve a majority in the Council it is not sufficient to secure 55% of the votes of the Member States; this majority must also represent [Member States comprising] 65% of the ‘population of the Union’ (Art. 16(4) TEU – Lisbon). The applicable system of weighted votes, which allocates a number of votes to Member States depending on size, is to be dispensed with after a transitional period.

292

With the approach laid down in the Treaty of Lisbon, the European Union again follows the traditional principle of sovereign equality of states (one state, one vote) under international law. However, the new corrective mechanism of a majority of the population requirement adds another basis of representation that consists of the peoples of the Member States of the EU, referring not to the citizens of the EU as subjects of political rule, but to the inhabitants of the Member States as an expression of the representative power of the Council representative of each Member State concerned. In the future, a Council decision must in principle be backed by a numerical majority of people living in the EU. This weighting on the basis of the number of inhabitants counterbalances the over-federalised structure of the EU, but does so without satisfying the democratic requirement of equal suffrage. In multi-party democracies with equal suffrage and direct parliamentary representation, the democratic legitimation of political power derives from the election by the individual, and is not measured against the sum of those affected.

293

(3) The institutional recognition of national Parliaments by the Treaty of Lisbon cannot offset the deficit with regard to direct democratic legitimation of European public authority deriving from the election of members of the European Parliament. The role of national Parliaments is weakened considerably by the reduction in unanimous decisions and the supranationalisation of police and judicial cooperation in criminal matters. The compensation provided for in the Treaty through the procedural strengthening of the principle of subsidiarity shifts existing political rights of self-determination – as was emphasised by all those heard in the oral hearing – to possibilities of intervention through procedural means and legally enforceable claims to participation.

294

(4) Neither the additional participatory rights, whose effects are convoluted given the various procedural levels and the large number of national Parliaments, nor the right of associative or direct petition vis-à-vis the Commission are capable of replacing majority rule derived from elections. However, in an association of sovereign states with limited tasks, they can and should increase the overall level of legitimation.

295

The mere participation of citizens in wielding political power as a substitute for the representative self-government of the people cannot replace the legitimation provided by elections and votes or a government based thereon. The Treaty of Lisbon does not usher in a new stage of development of democracy. Its elements of participatory democracy, such as the requirement to let EU citizens and ‘representative’ associations communicate their views, and its elements of associative and direct democracy, can only serve as a supplementary function and not a replacement in providing legitimation to European public authority. Descriptions of and calls for a ‘citizens’ Europe’ or a ‘strengthening of the European Parliament’ serve to support politics at the European level and contribute to strengthening acceptance for the EU and explaining its institutions and processes. But when transposed into normative statements without an equality-based design of the institutions – as is done to a certain extent by the Treaty of Lisbon – such statements are not capable of establishing a fundamentally new guiding principle at the level of the law.

296

ee) The development of the institutional architecture through the Treaty of Lisbon does not simply involve a strengthening of participation rights and improved transparency of decision-making, such as with regard to the legislative activities of the Council. It also contains contradictions, because, under the Treaty, the Member States follow the model of a federalised state without being able to create a corresponding legal and democratic basis through the equal election of a representative body of the people based solely on the legitimation provided by the EU’s populace and and a parliamentary-based European government.

297

Even on the basis of currently applicable law, the European Commission has evolved into a de facto European government – shared with the Council and the European Council. It is not ascertainable how this process of increasing political autonomy could proceed further without a direct link to elections by the demos on the basis of equal suffrage, which includes the possibility to vote out incumbents and thereby has political effectiveness. If the focal point of the political structure continues to shift towards the Commission, as is intended in the conceptual proposals on the future of the European Union, and the President of the Commission is elected, both de jure and de facto, only by the European Parliament (cf. Art. 17(7) TEU – Lisbon), then the election of members of the European Parliament would also – to an extent that exceeds what is currently set out in the law – determine a European government. In terms of the legal situation existing after the entry into force of the Treaty of Lisbon, this consideration confirms that acts of the European Union without a democratic link to the Member States lack sufficient legitimation.

298

b) As a supranational organisation, the European Union must, in the acquisition and exercise of its competences, continue to comply with the principle of conferral – with conferred powers exercised in a controlled and restrained manner. Especially following the failure of the European constitutional project, the Treaty of Lisbon has made it sufficiently clear that this principle continues to apply. The Member States remain masters of the Treaties. Despite a further expansion of competences, the principle of conferral is retained. The Treaty provisions can be interpreted to the effect that both the constitutional and political identity of the Member States, organised in accordance with democratic principles in their entirety, and their responsibility for the basic direction and design of EU policy, are safeguarded. After the entry into force of the Treaty of Lisbon, the Federal Republic of Germany remains a sovereign state and thus a legal subject under international law. The substance of German state authority, including its constituent power, is protected (see aa) below), the German state territory remains allocated only to the Federal Republic of Germany as a legal subject (see bb) below), and there are no doubts as to the continued existence of the German people (see cc) below).

299

aa) In accordance with the rules regarding the allocation and delimitation of competences, sovereign state power is maintained (see (1) below). This is not contradicted by new primary law rules on Treaty amendments (see (2) below). The continued existence of sovereign state authority is also reflected in the right to leave the EU (see (3) below), and is protected by the final say of the Federal Constitutional Court (see (4) below).

300

(1) The allocation and delimitation of competences between the EU and the Member States is based on the principle of conferral (see (a) below) and other protective mechanisms relating to specific competences (see (b) below).

301

(a) The principle of conferral is a protective mechanism to safeguard Member State responsibility. The EU is only competent for a particular area if the requisite competence was transferred to it by the Member States. Thus, the Member States are the constituted primary political space for their respective societies, while the European Union has secondary, i.e. delegated, responsibility for the tasks conferred upon it. The Treaty of Lisbon expressly affirms the already applicable principle of conferral: ‘The Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’ (Art. 5(1) first sentence and (2) TEU – Lisbon; cf. also Art. 1(1), Art. 3(6), Art. 4(1), Art. 48(6) subpara. 3 TEU – Lisbon; Art. 2(1) and (2), Art. 4(1), Art. 7, Art. 19, Art. 32, Art. 130, Art. 132(1), Art. 207(6), Art. 337 TFEU; Declaration No. 18 in relation to the delimitation of competences; Declaration No. 24 concerning the legal personality of the European Union).

302

One formal mechanism of protection is the introduction of a classification and categorisation of the competences of the European Union as between exclusive competences, shared competences and competences to support, coordinate or complement [actions of the Member States] ([…]).

303

It is true that the transparency achieved by this categorisation of competences is limited, in that the Treaty of Lisbon does not clearly assign the ‘parallel’ competences claimed by both the Member States and the EU to one such category (cf. Art. 2(5) subpara. 1 and Art. 4(3) and (4) TFEU), the common foreign and security policy and the coordination of economic and employment policy remain outside the scope of the three categories of competences, and the so-called ‘open method of coordination’ is not mentioned. However, these deviations from the systematic approach do not affect the principle of conferral, nor do their type and scope undermine the objective of a clear delimitation of competences.

304

(b) Moreover, substantive mechanisms of protection, and particularly rules regarding the exercise of competences, are designed to ensure that the individual powers conferred upon the EU are exercised in a manner that softens the impact on Member State competences. Rules regarding the exercise of competences include the requirement to respect the national identities of Member States (Art. 4(2) TEU – Lisbon), the principle of sincere cooperation (Art. 4(3) TEU – Lisbon), the principle of subsidiarity (Art. 5(1) second sentence and (3) TEU – Lisbon) and the principle of proportionality (Art. 5(1) second sentence and (4) TEU – Lisbon). These principles are reaffirmed and their content is specified in part by the Treaty of Lisbon.

305

Furthermore, Protocol No. 2 on the application of the principles of subsidiarity and proportionality (Subsidiarity Protocol) strengthens the principle of subsidiarity in procedural terms. This is done by involving national Parliaments in monitoring compliance with the principle of subsidiarity through a so-called early warning system (Art. 12(b) TEU – Lisbon, Art. 4 ff. Subsidiarity Protocol), and by extending the group of those with standing to lodge an action for annulment before the Court of Justice of the European Union to include national Parliaments and the Committee of the Regions. How effective this mechanism will prove to be depends on the extent to which national Parliaments can organise themselves in a way that allows them to meaningfully use it in the short eight-week period available to them ([…]). It will also depend on whether the right to bring an action of national Parliaments and the Committee of the Regions is extended to the question, which precedes any review of compliance with the principle of subsidiarity, of whether the European Union has competence for the legislative project at issue ([…]).

306

(2) The transfer of sovereign powers to the European Union in a controlled manner that allows for accountability, which can only take place in accordance with constitutional law, is not called into question by individual provisions of the Treaty of Lisbon. EU institutions may not themselves change the Treaty foundations of the European Union or the order of competence vis-à-vis the Member States, whether in the context of the ordinary (see (a) below), or simplified Treaty revision procedure (see (b) below) or via the so-called passerelle clauses (see (c) below) or the flexibility clause (see (d) below).

307

(a) The ordinary revision procedure to amend the Treaty foundations of the European Union (Art. 48(2) to (5) TEU – Lisbon) corresponds to the traditional revision procedure found in comparable multilateral treaties. A conference composed of representatives of the national governments convened by the President of the Council is competent for agreeing upon Treaty amendments. However, such amendments only enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements (Art. 48(4) subpara. 2 TEU – Lisbon). The Treaty of Lisbon specifies that such Treaty amendments may serve either to increase or to reduce the competences conferred on the EU in the Treaties (Art. 48(2) second sentence TEU – Lisbon).

308

The foregoing is not altered by the fact that this traditional Treaty revision procedure is preceded by a procedure that has arisen out of the European integration process, in which a Convention of representatives of national Parliaments, of heads of state and government of the Member States, of the European Parliament and of the Commission are generally involved, in accordance with the principle of sovereign equality of states (Art. 48(3) subpara. 1 TEU – Lisbon). The Convention procedure is an addition to the revision procedure under international law, which revolves around the Member States, and reflects the specific institutional features of the European Union. The Convention draws up the proposals for amendments and adopts by consensus a recommendation to the conference of representatives of the governments of the Member States (Art. 48(3) subpara. 1 third sentence TEU – Lisbon). This is not objectionable under constitutional law, provided that the Member States are not legally bound by the outcome of the Convention and can freely decide which Treaty amendments they wish to determine by common accord under international law (Art. 48(4) TEU – Lisbon).

309

(b) (aa) The Treaty of Lisbon introduces an additional simplified revision procedure (Art. 48(6) TEU – Lisbon). While Treaty amendments in accordance with the ordinary procedure are agreed by the governmental conference – or, as the case may be, following the convening of the Convention – and require ratification by the Member States, the simplified procedure merely requires a decision by the European Council, which enters into force after it is ‘approved by the Member States in accordance with their respective constitutional requirements’ (Art. 48(6) subpara. 2 TEU – Lisbon). It is expressly laid down that such a decision of the European Council may not increase the competences conferred on the European Union in the Treaties (Art. 48(6) subpara. 3 TEU – Lisbon). The differentiation between an ordinary and a simplified revision procedure indicates that fundamental amendments can only be made under the ordinary procedure, as the Convention method provided for as the general standard is designed to achieve a higher degree of legitimation. Nevertheless, the European Council may also decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention in the ordinary procedure should this not be justified by the extent of the proposed amendments (Art. 48(3) subpara. 2 TEU – Lisbon).

310

Under the Treaty of Lisbon, the simplified revision procedure, the use of which under the current Treaties is only envisaged for specific provisions (see Art. 17(1) TEU – introduction of a common defence; Art. 42 TEU – applicability of Title IV of the EC Treaty to police and judicial cooperation in criminal matters; Art. 22(2) EC Treaty – extension of the rights of citizens of the EU; Art. 190(4) EC Treaty – introduction of a uniform procedure for elections to the European Parliament; Art. 269(2) EC Treaty – determination of the European Union’s own resources), is applicable to changes in provisions concerning the internal policy areas in Part III of the Treaty on the Functioning of the European Union (Art. 48(6) subpara. 2 first sentence TEU – Lisbon).

311

The scope of the authorisation to amend provisions of Part III of the Treaty on the Functioning of the European Union can only be determined to a limited extent and, in substantive terms, is hardly foreseeable by the German legislator. Art. 48(6) TEU – Lisbon grants the European Council wide leeway for changes in primary law. The only limitation on the substance of future changes in the internal policy areas, which comprise 172 articles, including the internal market and economic and monetary union, is the prohibition against increasing the competences of the European Union (Art. 48(6) subpara. 3 TEU – Lisbon).

312

In its judgment regarding the Treaty of Maastricht, the Federal Constitutional Court held that changes in primary law can also be made through an abridged procedure if they are approved by the Member States in accordance with their respective constitutional requirements (cf. BVerfGE 89, 155 <199>). However, that phrasing regarding the necessary approval by the Member States in accordance with their respective constitutional requirements, which differs from Art. 48(4) subpara. 2 TEU – Lisbon, does not mean that the domestic requirements applicable to the ratification of ‘simplified’ Treaty changes are lower than those applicable to the ratification of ‘ordinary’ Treaty changes. The ‘approval’ by the Federal Republic of Germany in the simplified revision procedure pursuant to Art. 48(6) TEU – Lisbon always requires a law within the meaning of Art. 23(1) second sentence of the Basic Law, as lex specialis to Art. 59(2) of the Basic Law (cf. BVerfGE 89, 155 <199>; regarding domestic ratification requirements, see also Decision No. 2007-560 DC of the Conseil constitutionnel of 20 December 2007, no. 26 ff.). Given that a decision pursuant to Art. 48(6) TEU – Lisbon is linked to the order of competence of the EU, the simplified revision procedure must generally be treated as a transfer of sovereign powers within the meaning of Art. 23(1) second sentence of the Basic Law ([…]), without requiring any further limitation on permissible types of changes. Treaty changes that change or amend the contents of the Basic Law or make such changes or amendments possible require the consent of two thirds of the members of the Bundestag and two thirds of the members of the Bundesrat (Art. 23(1) third sentence in conjunction with Art. 79(2) of the Basic Law; cf. BVerfGE 89, 155 <199>).

313

(bb) The Treaty of Lisbon inserts additional provisions into the Treaties that are modelled on Art. 48(6) TEU – Lisbon, but are limited to a specific subject matter and are broadened by the Treaty of Lisbon (cf. Art. 42(2) subpara. 1 TEU – Lisbon – introduction of a common defence policy; Art. 25(2) TFEU – extension of the rights of citizens of the EU; Art. 218(8) subpara. 2 second sentence TFEU – accession of the European Union to the European Convention on Human Rights; Art. 223(1) subpara. 2 TFEU – introduction of a uniform electoral procedure for the European Parliament; Art. 262 TFEU – competence of the European Union to create European intellectual property rights; Art. 311(3) TFEU – determination of the European Union’s own resources).

314

The constitutional considerations regarding the simplified revision procedure also apply to the revision procedures contained in these individual Treaty provisions, insofar as Art. 23(1) second sentence of the Basic Law does not already apply on the grounds that the amendment provisions do not contain a prohibition corresponding to Art. 48(6) subpara. 3 TEU – Lisbon against expanding the EU’s competences beyond the competences conferred by the Treaties.

315

(c) In addition to the ordinary and the simplified revision procedures, the Treaty of Lisbon also provides for the general passerelle procedure as a further revision procedure (Art. 48(7) TEU – Lisbon). Moreover, the Treaty of Lisbon contains special passerelle clauses for certain Treaty provisions (cf. Art. 31(3) TEU – Lisbon – decisions regarding the common foreign and security policy in cases other than those listed in Art. 31(2) TEU – Lisbon; Art. 81(3) subparas. 2 and 3 TFEU – measures relating to family law with cross-border implications; Art. 153(2) subpara. 4 TFEU – measures relating to certain areas of labour law; Art. 192(2) subpara. 2 TFEU – measures relating to environmental policy; Art. 312(2) subpara. 2 TFEU – determination of the multiannual financial framework; Art. 333(1) and (2) TFEU – voting procedure in the context of enhanced cooperation pursuant to Art. 326 ff. TFEU). Through the passerelle procedure, the voting arrangements in the Council and the applicable legislative procedure can be changed.

316

Under the general and special passerelle clauses, the European Council or the Council may decide that the Council can adopt a decision in an area or a certain case by qualified majority rather than by unanimity (Art. 48(7) subpara. 1 first sentence TEU – Lisbon; Art. 31(3) TEU – Lisbon; Art. 312(2) subpara. 2, Art. 333(1) TFEU) or that legislative acts within the scope of application of the Treaty on the Functioning of the European Union be adopted in accordance with the ordinary rather than the special legislative procedure (Art. 48(7) subpara. 2 TEU – Lisbon; Art. 81(3) subpara. 2, Art. 153(2) subpara. 4, Art. 192(2) subpara. 2, Art. 333(2) TFEU). Additionally, the change from the special to the ordinary legislative procedure in most cases results in the Council no longer deciding by unanimity, but by qualified majority (cf. Art. 289(1) in conjunction with Art. 294(8) and (13) TFEU). Decisions with military or defence implications are expressly exempted from the possibility of being adopted by qualified majority in the Council (Art. 31(4), 48(7) subpara. 1 second sentence TEU – Lisbon). The European Council and the Council decide by unanimity on the Treaty change and – within the scope of application of the general passerelle clause – after obtaining the consent of the European Parliament (Art. 48(7) subpara. 4 TEU – Lisbon). In addition, both the general passerelle clause and the special passerelle clauses provide for the involvement of national Parliaments in the area of family law with cross-border implications. Any national Parliament can make known its opposition to a draft decision of the European Council or Council within six months of the date of notification; the decision may then not be adopted at the European level (Art. 48(7) subpara. 3 TEU – Lisbon; Art. 81(3) subpara. 3 TFEU).

317

Unlike the simplified revision procedure pursuant to Art. 48(6) TEU – Lisbon, the general and special passerelle clauses only allow for Treaty changes concerning the two procedural provisions set out in the Treaty on the Functioning of the European Union and in Title V of the Treaty on European Union. The European Council and the Council have no further leeway. Given that voting by qualified majority in the Council and the ordinary legislative procedure laid down by the Treaty of Lisbon are the rule for law-making (Art. 16(1) and (3); Art. 14(1) TEU – Lisbon, Art. 289(1) in conjunction with Art. 194 TFEU), the overall scale of the decline in influence of the German representative in the Council brought about by the introduction of qualified majority voting is at least generally ascertainable. However, the responsibility with regard to European integration cannot be fully exercised with regard to the question of whether the level of democratic legitimation of EU power still corresponds to the scope of the transferred powers and, above all, the higher level of autonomy of European decision-making procedures.

318

The loss of German influence in the Council that will result from the exercise of the general and special passerelle clauses must be foreseeable at the time of ratification of the Treaty of Lisbon by the German legislator, including in the individual case. Only such foreseeability can provide sufficient democratic legitimation for the advance consent of a Member State to a subsequent Treaty change. The unanimity required in the European Council and the Council in the framework of the passerelle clauses for changing the procedural provisions does not provide sufficient guarantees in this respect, given that the representatives of the Member States in the European Council or in the Council may not always sufficiently realise to what extent they relinquish the Member States’ veto powers in the Council for future cases. In addition to the requirement of unanimity in the European Council or the Council, the passerelle clauses set various procedural requirements. Unlike the general passerelle clause in Art. 48(7) subpara. 3 TEU – Lisbon, the special passerelle clauses – with the exception of Art. 81(3) subpara. 3 TFEU – do not provide for a right to opposition of national Parliaments.

319

Insofar as the general passerelle clause of Art. 48(7) TEU – Lisbon allows for a change from the principle of unanimity to qualified majority voting in the Council or from the special to the ordinary legislative procedure, this constitutes a Treaty change concerning primary law that must be measured against Art. 23(1) second sentence of the Basic Law. In its judgment concerning the Treaty of Maastricht, in response to the contention that the state lost influence in an area central for fundamental rights holders, that of home affairs and legal policy, the Federal Constitutional Court emphasised that decisions taken under the ‘third pillar’ must be unanimous and that such decisions cannot make law that would be directly applicable in the Member States or take precedence (cf. BVerfGE 89, 155 <176>). Yet the Treaty of Lisbon transfers precisely this area to the supranational power of the EU, by providing for the possibility of lifting unanimity by European Council decision under the general passerelle procedure, and applying qualified majority voting, or of replacing the special with the ordinary legislative procedure. While these are subject to a right to opposition from national Parliaments, they do not require ratification by the Member States. This affects the core reasoning of the aforementioned justification provided in the judgment concerning the Treaty of Maastricht. The opposition right of national Parliaments (Art. 48(7) subpara. 3 TEU – Lisbon) is not an adequate equivalent to the requirement of ratification; in Germany, the consent of the German government representative in the European Council therefore requires a law within the meaning of Art. 23(1) second sentence and, where applicable, third sentence of the Basic Law. Only in this manner do the German legislative bodies discharge their responsibility with regard to European integration and determine whether the level of democratic legitimation is still sufficient to accept a majority decision. The German representative in the European Council may only consent to Treaty change brought about by the application of the general passerelle clause if the Bundestag and the Bundesrat have enacted a law pursuant to Art. 23(1) of the Basic Law, within a time limit to be determined, which must be based on the purpose of Art. 48(7) subpara. 3 TEU – Lisbon. This also applies to the use of the special passerelle clause under Art. 81(3) subpara. 2 TFEU.

320

A law within the meaning of Art. 23(1) second sentence of the Basic Law is not required to the extent that special passerelle clauses are limited to matters that are set out in a sufficiently specific manner in the Treaty of Lisbon. In these cases, however, it is also incumbent upon the Bundestag and – insofar as the legislative powers of the Länder are concerned – the Bundesrat to discharge their responsibility with regard to European integration in other appropriate ways. The veto right in the Council may not be relinquished without the participation of the competent legislative organs, even if it concerns matters that have already been specified in the Treaties. The German representative in the European Council or in the Council may therefore only give their consent on behalf of the Federal Republic of Germany to Treaty change brought about by the application of one of the special passerelle clauses if the Bundestag and, insofar as the rules on legislation so require, the Bundesrat have approved this decision, within a time limit to be determined, which must be based on the purpose of Art. 48(7) subpara. 3 TEU – Lisbon (cf. in this regard the constitutive parliamentary control of decisions under Section 6 of the UK European Union <Amendment> Act 2008 <c. 7>, which is, however, not subject to a time limit). It would be incompatible with the constitutional requirement of a parliamentary decision if the time limit were designed in such a way that silence of the legislative bodies was interpreted as approval. If these conditions are met, the relevant provisions of the Treaty of Lisbon may be applied in Germany.

321

This constitutional requirement applies to the application of Art. 31(3) TEU – Lisbon, Art. 312(2) subpara. 2 and Art. 333(1) TFEU, which allow the change from unanimity to qualified majority voting. It must also be extended to Treaty provisions that, like Art. 153(2) subpara. 4, Art. 192(2) subpara. 2 and Art. 333(2) TFEU, concern a change from the special to the ordinary legislative procedure, since in these cases, too, the Council may decide by qualified majority instead of by unanimity (cf. Art. 289(1) in conjunction with Art. 294(8) and (13) TFEU).

322

(d) Finally, the Treaty of Lisbon does not contain any provisions that would give the European Union the competence to decide on its own competences (Kompetenz-Kompetenz). Both Art. 311(1) TFEU (see (aa) below) and Art. 352 TFEU (see (bb) below) can be interpreted in such a way that the integration agenda envisaged in these provisions can be foreseen and controlled by the German legislative organs.

323

(aa) According to Art. 311(1) TFEU, the EU provides itself with the means necessary to attain its objectives and carry through its policies. This provision is identical to Art. 6(4) TEU, which was inserted into primary law as Art. F(3) by the Treaty of Maastricht. In its decision concerning the Treaty of Maastricht, the Federal Constitutional Court concluded, following an extensive interpretation of the provision’s legislative history, that Art. F(3) TEU does not authorise the European Union to acquire, on its own authority, the financial resources or other means which it considers necessary to attain its objectives ([…]).

324

Art. 311(1) TFEU is to be understood as a declaration of political intent that does not create any competences on the part of the European Union, let alone a competence to decide on its own competences (cf. BVerfGE 89, 155 <194>). The equipment of the European Union with the means necessary to attain its objectives and to implement its policies must remain within the framework of existing competences. The provision’s new systematic approach resulting from the Treaty of Lisbon confirms the interpretation that the provision only refers to financial means of the European Union, and does not additionally refer to means of action.

325

(bb) By contrast, Art. 352 TFEU, which serves to complement existing EU competences with regard to its objectives, has legal effects (regarding the previous Art. 235 EEC Treaty, cf. BVerfGE 89, 155 <210>). The Treaty of Lisbon adopts this provision – with changes regarding its scope of application and procedural prerequisites – from existing primary law (now Art. 308 EC Treaty).

326

Art. 352 TFEU does not only give rise to a competence to take action on the part of the European Union, it also provides for a less stringent application of the principle of conferral. This is because it allows for action by the EU within the framework of the policies defined in the Treaties, even if the Treaties have not provided specific competences in this regard, if such action is necessary to attain the objectives set out in the Treaties (Art. 352(1) TFEU).

327

As the law previously stood, Art. 308 of the EC Treaty was considered to constitute ‘dispositive powers’ (cf. BVerfGE 89, 155 <210>), which permitted the ‘further development as inherent in the Treaties’ of EU law ‘below the level of formal Treaty change’ ([…]). The changes effected by the Treaty of Lisbon require a reassessment of this provision. Art. 352 TFEU is no longer limited to realising objectives within the framework of the common market, but now makes reference to the ‘policies defined in the Treaties’ (Art. 352(1) TFEU), with the exception of the common foreign and security policy (Art. 352(4) TFEU). Thus, the provision can serve to create a competence in nearly the entire scope of application of primary law that allows action at the EU level. This expansion of the scope of application is partially offset by procedural safeguards. Making use of the flexibility clause continues to be subject to a unanimous decision in the Council on a proposal from the Commission, which now also requires the consent of the European Parliament (Art. 352(1) first sentence TFEU). Moreover, the Commission is required to inform national Parliaments of relevant law-making proposals using the procedure for monitoring the subsidiarity principle (Art. 352(2) TFEU). Such proposals may not entail harmonisation of Member States’ laws or regulations in cases where the Treaties exclude such harmonisation.(Art. 352(3) TFEU). The decision can enter into force without requiring the approval of the Member States in accordance with their respective constitutional requirements.

328

This provision raises constitutional concerns with regard to the prohibition of conferring blanket authorisations or of conferring upon the European Union the competence to decide on its own competences, given that its new wording allows for substantial changes to be made to the Treaty foundations without a requirement of constitutive involvement of legislative organs, apart from the Member States’ executives (regarding the delimitation of competences, cf. Laeken Declaration of 15 December 2001 on the future of the European Union, Bulletin EU 12-2001, I.27 Annex I>). This is not altered by the obligation to inform national Parliaments, provided for in Art. 352(2) TFEU, since the Commission is only required to draw national Parliaments’ attention to relevant proposals. Given the lack of specificity of the potential application of the flexibility clause, its use requires, under constitutional law, ratification by the German Bundestag and the Bundesrat on the basis of Art. 23(1) second and third sentence of the Basic Law. The German representative in the Council may not declare Germany’s formal approval of such a law-making proposal by the Commission unless these constitutional requirements have been met.

329

(3) The Treaty covered by the Act of Approval reaffirms the principle of interconnection that applies within the system of a responsible transfer of sovereign powers while respecting the Member States’ sovereignty and therefore satisfies constitutional requirements. For the first time, the Treaty of Lisbon contains a provision that expressly lays down in primary law the right of any Member State to withdraw from the European Union (Art. 50 TEU – Lisbon). The right of withdrawal underlines the Member States’ sovereignty and shows that the European Union, at its current stage of development, has not crossed the threshold that would make it a state under international law ([…]). When a Member State can withdraw from the European Union on the basis of an autonomous decision, European integration is not irreversible. Germany’s membership therefore depends on its lasting and unchanged willingness to be part of the European Union. The legal limits of this willingness are set by the Basic Law.

330

Any Member State can withdraw from the European Union, including against the will of the other Member States (cf. Art. 54(a) of the Vienna Convention on the Law of Treaties of 23 May 1969, BGBl 1985 II p. 926 ff.). The decision to withdraw does not necessarily have to be implemented by means of a withdrawal agreement between the European Union and the Member State concerned. If no such agreement is concluded, withdrawal becomes effective two years after the Member State has notified the European Council of its intention to withdraw (Art. 50(3) TEU – Lisbon). The right of withdrawal can be exercised without any further constraints, given that the Member State intending to withdraw does not have to state reasons for its decision. Art. 50(1) TEU – Lisbon merely provides that the withdrawal of a Member State must be ‘in accordance with its own constitutional requirements’. Whether these requirements have been satisfied in a particular case, however, can only be assessed by the Member State concerned and not by the European Union or the other Member States.

331

(4) With Declaration No. 17 concerning primacy annexed to the Treaty of Lisbon, the Federal Republic of Germany does not recognise the absolute precedence of application of EU law, but merely confirms the applicable legal framework as interpreted by the Federal Constitutional Court. This is not objectionable under constitutional law. The assertion of the complainant in proceedings III. that the approval of the Treaty of Lisbon incorporates into the Treaties the ‘unlimited’ precedence of application of the law made by EU institutions over the law of the Member States that was proposed in the Constitutional Treaty, ultimately resulting in an impermissible precedence of application that might even lead to the derogation of conflicting national constitutional law, is inaccurate. It is also inaccurate to assume that the additional competences conferred upon the EU in many areas would result in a situation where the Federal Constitutional Court is no longer able to review the EU’s adherence to the principle of conferral and the associated legal effects in Germany and where the substance of Germany’s constitutional identity and its fundamental rights protection could no longer be upheld ([…]).

332

Given that the precedence of application remains subject to authorisation under constitutional law, the values enshrined in Art. 2 TEU – Lisbon, the legal character of which need not be clarified here, cannot claim precedence in the event of a conflict with the constitutional identity of the Member States, which is protected by Art. 4(2) first sentence TEU – Lisbon and guaranteed under constitutional law by way of the instrument of identity review under Art. 23(1) third sentence in conjunction with Art. 79(3) of the Basic Law. The values enshrined in Art. 2 TEU – Lisbon, which are already contained as principles in the currently applicable Art. 6(1) TEU, do not confer upon the European Union the competence to decide on its own competences; in this respect, too, the principle of conferral continues to apply.

333

(a) The European Treaties allocated the task of interpreting EU primary and secondary law to the European courts. Within the scope of their respective jurisdictions, the Court of Justice and the General Court ensure that, on the basis of the applicable Treaty Establishing the European Community and, to a lesser extent, the Treaty on European Union, the law is observed in the interpretation and application of the Treaties (Art. 220 EC Treaty; Art. 35 TEU). In the context of the preliminary ruling procedure, it is for the Court of Justice to make binding decisions on the interpretation of the Treaty and the validity and interpretation of acts of Community institutions and of the European Central Bank (Art. 234 EC Treaty). Accordingly, the Treaties bind the national courts to the jurisprudence of the European courts, in particular that of the Court of Justice, via the orders giving effect to European law contained in the act of approval of the respective Treaties.

334

It follows from the principle of the sovereignty of the people, which continues to apply and is enshrined in national law, and from the fact that the Member States remain the masters of the Treaties that – at least until a European federal state is formally established and the subject of democratic legitimation is expressly changed – the Member States cannot be deprived of the right to review adherence to the European integration agenda.

335

Pursuant to Art. 31 of the Basic Law, federal law takes precedence over Land law. Supranational law does not have the same preemptive and displacing effect. The precedence of application of EU law does not affect a conflicting national law’s claim to validity and only overrides national law to the extent required in the Treaties and permitted by the domestic order giving effect to European law that is contained in the act of approval (cf. BVerfGE 73, 339 <375>). National law that conflicts with Community or EU law is only found to be inapplicable to the extent that this is required by the contents of conflicting Community or EU law.

336

This approach, which is rather theoretical in the everyday application of the law because it seldom results in a practical difference in legal effect, nevertheless does have consequences for the relationship between national and European courts. Within their jurisdictions, national judicial organs that adjudicate constitutional cases cannot be deprived – at least under the Basic Law – of their responsibility to ensure respect for the limits of the constitutional basis authorising European integration and for the inalienable constitutional identity.

337

The Basic Law’s mandate for European integration and the applicable European Treaties demand, by way of the idea of the European Union as a community of law, limitations on the exercise of jurisdiction by national courts. These serve to prevent effects that may jeopardise integration, which could be brought about by differing decisions of national courts regarding applicability that could call into question the unity of the Community legal order. The Federal Constitutional Court has set aside its original assumption that it was generally within its jurisdiction to review the implementation of European Community law in Germany on the basis of the fundamental rights enshrined in the German Constitution (cf. BVerfGE 37, 271 <283>), trusting that the Court of Justice of the European Communities will perform its task in this respect (cf. BVerfGE 73, 339 <387>; confirmed in BVerfGE 102, 147 <162 ff.>). However, in consideration of the role of the Community institutions as derived from international law, it could only ‘in principle’ recognise the final nature of the Court of Justice’s decisions (BVerfGE 73, 339 <367>).

338

The complainants in the proceedings on the constitutionality of the German Act of Approval of the Treaty of Maastricht argued that the final nature of decisions of the Court of Justice amounted to complete control of Community institutions over the Treaties, and thus was not a transfer of individual sovereign powers, but of sovereignty as such that would be impermissible under constitutional law. The Federal Constitutional Court already rebutted this argument in its decision on the Treaty of Maastricht. The Federal Constitutional Court held that it reviews whether legal acts of the European institutions and bodies remain within the boundaries of the sovereign powers transferred to them or whether the Community courts have interpreted the Treaties in an expansive manner, amounting to an impermissible amendment of the Treaties on the Community’s own authority (BVerfGE 89, 155 <188, 210>; in a similar vein most recently Czech Constitutional Court, Judgment of 26 November 2008, Pl. ÚS 19/08, Treaty Amending the Treaty on European Union and the Treaty establishing the European Community, para. 139).

339

After the entry into force of the Treaty of Lisbon, the precedence of application of European law likewise remains a principle transferred by international treaties, and thus a derived principle, which only produces legal effects in Germany on the basis of the order giving effect to European law contained in the domestic act of approval. This is not altered by the fact that the precedence of application is not expressly provided for in the Treaties, but was derived therefrom by way of interpretation in the Court of Justice’s jurisprudence in the early stages of European integration. It follows from the continuing sovereignty of the Member States that, at least in cases where there is evidently no constitutive order giving effect to European law, the Federal Constitutional Court declares such a legal act to be inapplicable in Germany. Such a declaration must also be made if sovereign powers, whether they have been transferred to the EU or not, are exercised in a way that results in a violation of Germany’s inalienable constitutional identity protected by Art. 79(3) of the Basic Law and respected by the European Treaties, namely in Art. 4(2) first sentence TEU – Lisbon.

340

While the Basic Law seeks to integrate Germany into the legal community of peaceful and democratic states, it does not relinquish sovereignty in relation to the final authority that ultimately belongs to the Constitution, as a right of the people to decide for themselves on fundamental questions of their own identity. In this respect, is not contrary to the objective of openness to international law if the legislator, in exceptional cases, does not observe international treaty law and accepts the consequences for international relations following from such conduct, provided that it is the only way to avert a violation of fundamental constitutional principles (cf. BVerfGE 111, 307 <317 f.>). The Court of Justice of the European Communities based its decision in Kadi of 3 September 2008 on a similar view: it held that the claim to validity of a resolution of the UN Security Council could be denied if it infringed fundamental legal principles of the Community (CJEU, C-402/05 P and C-415/05 P, Europarecht – EuR 2009, p. 80 <100 ff.>). The Court of Justice thereby, in a borderline case, considered the assertion of the EU’s own identity as a community of law to be of higher value than the binding effect [of international law], which it otherwise respects. This is not just a familiar legal concept in international law when public policy is invoked as a limitation of obligations under international law, it also corresponds, at least under a constructive approach, to the idea of political contexts that are not strictly hierarchical. In substance, it does not contradict the principle of the Constitution’s openness to European law, i.e., the participation of the Federal Republic of Germany in the realisation of a united Europe mandated under constitutional law (Preamble, Art. 23(1) first sentence of the Basic Law), if the Federal Constitutional Court – by way of exception and under strict conditions – declares law of the European Union to be inapplicable in Germany (cf. BVerfGE 31, 145 <174>; 37, 271 <280 ff.>; 73, 339 <374 ff.>; 75, 223 <235, 242>; 89, 155 <174 f.>; 102, 147 <162 ff.>).

341

(b) Contrary to the submission of the complainant in proceedings III., the Federal Constitutional Court’s back-up jurisdiction, which is required under constitutional law, is not affected by Declaration No. 17 concerning primacy, which is annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. This declaration provides that, in accordance with well settled case-law of the Court of Justice of the European Union, the Treaties and the secondary law adopted by the EU on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case-law.

342

The precedence of application of EU law generally requires the direct applicability of European law in the Member States ([…]). In the area of the common foreign and security policy, there are no legal acts to which Declaration No. 17 on primacy would apply. The Treaty does not grant the European Union any sovereign powers that would allow it to intervene in the legal orders of the Member States (cf. Art. 24(1), Art. 40 TEU – Lisbon and Declaration No. 14 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon).

343

EU law applies in the Federal Republic of Germany on the basis of and subject to the order giving effect to European law contained in the act of approval, which must adhere to the applicable constitutional order (cf. BVerfGE 73, 339 <374 ff.>). In this respect, it is irrelevant whether the precedence of application of EU law, which the Federal Constitutional Court has already recognised in principle for Community law (cf. BVerfGE 31, 145 <174>), is provided for in the Treaties as such or in Declaration No. 17 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. This is because the precedence of EU law in Germany only applies by virtue of the order giving effect to European law that is contained in the act of approval of the Treaties. For sovereign powers exercised in Germany, the precedence of application only applies to the extent that the Federal Republic of Germany has given its consent, or was allowed to give its consent, to this rule governing a conflict of laws ([…]). This also means that the precedence of application of Community and EU law is not a compelling argument that the entry into force of the Treaty of Lisbon would result in the surrender of sovereign statehood or of Germany’s constitutional identity.

344

bb) The Act of Approval of the Treaty of Lisbon does not relinquish the territory of the Federal Republic of Germany. It is true that the limiting element of state territory, characterised in particular by the territorial borders intended in principle to prevent the exercise of foreign sovereign powers on the state territory, has lost some of its prior significance. In particular, amendments and treaties under international law complementing existing primary law have created an internal market (Art. 14(2) EC Treaty) and abolished border controls in the so-called Schengen area. The Treaty of Lisbon continues to relativise this limiting element by introducing a uniform management system for the ‘external borders’ of the European Union (Art. 77(1)(c) and (2)(d) TFEU). Nevertheless, the European Union exercises sovereign powers in Germany on the basis of the powers transferred by the Act of Approval of the Treaty of Lisbon, and thus only on the basis of the express authorisation of the Federal Republic of Germany. A territorial state power ([...]) continues to exist unchanged even under the changed circumstances of cross-border mobility.

345

This is not altered by the fact that the ‘area without internal frontiers’ (Art. 14(2), Art. 154(1) EC Treaty) and the ‘area of freedom, security and justice’ (Art. 67 ff. TFEU), which has become supranational in nature through the Treaty of Lisbon, also limits territorial sovereignty as an element of the state territory. Under the Treaty of Lisbon, the European Union does not have comprehensive territorial powers that would replace those of the Federal Republic of Germany. That the EU also does not claim such territorial powers following the entry into force of the Treaty of Lisbon is reflected by the fact that only the term ‘territorial scope’ of the Treaties is used (Art. 52 TEU – Lisbon; Art. 355 TFEU). This territorial scope is ancillary to the state territory of the Member States, which in its entirety determines the scope of application of EU law (Art. 52 TEU – Lisbon; Art. 355 TFEU). There is no direct EU territory that is not ancillary in nature ([…]).

346

cc) The Federal Republic of Germany will continue to have a constituent people after the ratification of the Treaty of Lisbon. The term ‘EU citizen’, which has gained significance over time, is only based on the Treaties. EU citizenship is derived solely from the will of the Member States and does not give rise to an EU people that could act in self-determination as a constituted legal subject.

347

In particular, the establishment of a federalist system cannot be inferred from the introduction of EU citizenship. Historical comparisons with the foundation of the German federalist state through the North German Confederation of 1867 ([…]) are not helpful in this context. In accordance with the realisation of the principle of the sovereignty of the people in Europe, it is only the peoples of the Member States that can control the sovereignty of the state through their respective constituent power. Without the express will of the people, the elected state organs are not authorised to create a new subject of legitimation in their state constitutional orders or to delegitimise existing ones.

348

EU citizenship is not a concept that has existed, in cultural or legislative terms, prior to the applicable Treaties and could therefore have legal effects shaping constitutional law. EU citizenship, which was already included in EU primary law through earlier Treaty changes, remains a derived status that merely serves to supplement the status of being a national of a Member State (Art. 17(1) second and third sentence EC Treaty; Art. 9(3) TEU – Lisbon). The rights associated with EU citizenship do not change this, even when the Treaty of Lisbon expands these rights. EU citizens are afforded a right to participate in the democratic life of the European Union (Art. 10(3), Art. 11(1) TEU – Lisbon), which highlights the necessary structural relationship between civil society and sovereign powers. Moreover, the Treaty of Lisbon facilitates the exercise of existing rights of EU citizens with regard to diplomatic or consular protection and identification documents (cf. Art. 23(2), Art. 77 (3) TFEU).

349

Further changes in primary law likewise do not result in EU citizenship superseding the primary nationality status. It is clear from the overall context of the Treaty of Lisbon that the linguistic change in Art. 9 third sentence TEU – Lisbon compared to Art. 17(1) second sentence of the EC Treaty (cf. Schrauwen, European Citizenship in the Treaty of Lisbon: Any Change at All?, Maastricht Journal of European and Comparative Law – MJECL 2008, p. 55 <59>), the use of the term ‘EU citizen’ in relation to the European Parliament (Art. 14(2) subpara. 1 first sentence TEU – Lisbon) and the role of EU citizens that is envisaged in the European citizens’ initiative (Art. 11(4) TEU – Lisbon) are not intended to create an independent subject of legitimation at the EU level.

350

Even in light of the expansion of rights of EU citizens, the German people will continue to exist, as long as EU citizenship does not replace or supersede Member State nationality. The derived status of EU citizenship and the observance of Member State nationality set limits to the development of EU citizens’ rights, as envisaged in Art. 25(2) TFEU, and to the jurisprudence of the Court of Justice of the European Union (regarding the significance of EU citizenship cf. CJEU, Judgment of 12 May 1998, C-85/96, Martínez Sala, European Case Reports – ECR 1998, p. I-2691 para. 62 f.; CJEU, Judgment of 20 September 2001, C-184/99, Grzelczyk, ECR 2001, p. I-6193 para. 31 f.; CJEU, Judgment of 17 September 2002, C-413/99, Baumbast, ECR 2002, p. I-7091 para. 82; CJEU, Judgment of 7 September 2004, C-456/02, Trojani, para. 25). Member States continue to have the possibility of differentiating on the basis of nationality. The right to vote in the Member States for the respective representative bodies above the municipal level is still reserved for their own nationals; likewise, the obligation of financial solidarity between the Member States in the form of social security benefits for EU citizens is still limited (cf. CJEU, Judgment of 18 November 2008, C-158/07, Förster, Europäische Zeitschrift für Wirtschaftsrecht – EuZW 2009, p. 44 <45>).

351

c) With the Treaty of Lisbon, the Member States expand the scope of the competences and the political leeway of the European association formed through integration. The existing and newly transferred competences will be exercised by the European Union, which will replace the European Community upon the entry into force of the Treaty of Lisbon. The institutions of the European Union can, and must, exercise the newly transferred competences in the areas of judicial cooperation in criminal matters (see aa) below) and civil matters (see bb) below), in external economic relations (see cc) below), common defence (see dd) below) and social matters (see ee) below) in such a way that Member States retain, in terms of both scope and substance, tasks of sufficient weight, which are the legal and practical prerequisite for a lively democracy. The newly established competences are – at least when interpreted in the required manner – not ‘elements creating a state’, nor do they violate the sovereign statehood of the Federal Republic of Germany in a constitutionally significant manner when considered in an overall assessment. In assessing the contention that tasks of the German Bundestag are unconstitutionally eroded, it is irrelevant how many legislative acts of the Member States are already influenced, preformed or determined by EU law ([…]). The constitutional assessment of the challenge does not hinge on quantitative relations, but rather on the fact that the Federal Republic of Germany retains substantial domestic leeway to shape central areas of regulation and life.

352

aa) (1) The Treaty of Lisbon considerably expands the competences of the European Union in the area of criminal justice. The European Union is authorised to enact directives establishing ‘minimum rules’ concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension ‘resulting from the nature or impact of such offences’ or ‘from a special need to combat them on a common basis’ (Art. 83(1) subpara. 1 TFEU). Examples of the areas of crime that can be subject to such cooperation are listed, but the list can be extended by unanimous Council decision with the consent of the European Parliament (Art. 83(1) subpara. 3 TFEU). In addition to this competence for the approximation of criminal law with regard to serious cross-border crime, the EU is granted a criminal annex competence in all areas which have been or will be subject to harmonisation measures (Art. 83(2) first sentence TFEU) – a competence which has already been presumed to exist in the case-law of the Court of Justice (cf. CJEU, Judgment of 13 September 2005, C-176/03, Commission v Council, ECR 2005, p. I-7879 para. 47 f.).

353

With regard to the law of criminal procedure, the European Union can adopt minimum rules concerning ‘mutual’ admissibility of evidence, the rights of the accused, of witnesses and of victims of crime or concerning any other specific aspects which the Council has identified in advance by unanimous decision after obtaining the consent of the European Parliament (Art. 82(2) subparas. 1 and 2 TFEU). Moreover, the EU can adopt measures promoting and supporting crime prevention (Art. 84 TFEU).

354

Finally, the powers of Eurojust can be expanded under the Treaty of Lisbon. In particular, Eurojust can be assigned the tasks of initiating and coordinating criminal investigations, by means of regulations adopted in accordance with the ordinary legislative procedure (Art. 85(1) TFEU), although formal acts of judicial procedure are reserved for the competent national authorities (Art. 85(2) TFEU). Moreover, the Council, acting unanimously and after obtaining the consent of the European Parliament, may expand Eurojust to include a European Public Prosecutor’s Office, which would be responsible for criminal investigations, prosecutions and indictments; for the time being, this possibility is limited to the fight against crimes affecting the financial interests of the EU (Art. 86(1) TFEU).

355

(2) Safeguarding the peaceful legal order (Rechtsfrieden) by means of criminal law has always been an important responsibility of the state. Criminal law serves an indispensable function in fulfilling the state’s responsibility to establish, safeguard and enforce a rule-based social co-existence by protecting the fundamental values of the community on the basis of a legal order ([…]). Every provision of criminal law therefore contains a socio-ethical condemnation – endowed with state authority – with regard to the conduct it criminalises. The specific contents of this condemnation follow from the criminal offence and the penalty (cf. BVerfGE 25, 269 <286>; 27, 18 <30>). The extent to which a political community uses criminal law as a means of social control, and the areas in which it does so, is a fundamental decision. Through criminal law, a legal community gives itself a code of conduct rooted in its values, the violation of which, according to the shared legal view, is considered to be so serious and intolerable for community life that it requires punishment ([…]).

356

In deciding what conduct is punishable, the legislator assumes democratically legitimised responsibility for a form of exercise of sovereign powers that is one of the most intrusive interferences with individual liberty in the modern constitutional state. The legislator is in principle free to decide on whether to defend a specific legal interest that it considers to be in need of protection through the criminal law and if so, how it wants to do so (cf. BVerfGE 50, 142 <162>; 120, 224 <240>; regarding the distinction between criminal wrongdoing and wrongdoing considered an administrative offence, BVerfGE 27, 18 <30>; 96, 10 <26>). Moreover, within the limits set by constitutional law, the legislator can freely decide which penalty a culpable person will face. The investigation of criminal acts, the identification of offenders and the decision as to their culpability and punishment fall to the organs of the criminal justice system, which initiate and conduct criminal proceedings and enforce penalties in accordance with the statutory requirements (cf. BVerfGE 51, 324 <343>).

357

In light of the integration of the German constitutional state into the international legal order of the community of states, the legislator’s leeway may be restricted under constitutional law by the obligation to enforce supranational law in its own sphere of responsibility. It may be necessary to make certain acts punishable for the purpose of enforcing essential rules of general international law vis-à-vis the individual (cf. BVerfGE 112, 1 <26>). This applies in particular to the process of developing an international criminal justice system for genocide, crimes against humanity and war crimes (cf. BVerfGE 113, 273 <296 f.>; Federal Constitutional Court, Order of the Fourth Chamber of the Second Senate of 12 December 2000 - 2 BvR 1290/99 -, Neue Juristische Wochenschrift – NJW 2001, p. 1848 ff.). As a Member State of the European Union, Germany has assumed further obligations. In establishing and developing an ‘area of freedom, security and justice’, which has until present for the most part been subject to the intergovernmental ‘third pillar’ of EU law, the European Union pursues the aim of linking the process of growing together and opening borders for persons, goods, services and capital to improved cooperation between law enforcement authorities. In individual areas, the Member States have agreed to create criminal and criminal procedural provisions that take into account the peculiarities of European cross-border cases.

358

Given that criminal law and criminal procedural law affect democratic self-determination in an especially direct manner, the competences conferred in the Treaties for such steps must be interpreted narrowly – never extensively –, and their use requires special justification. At its core, criminal law is not a technical instrument that serves to give effect to international cooperation; rather, it concerns particularly sensitive democratic decisions regarding legal and ethical minimum standards. This is expressly acknowledged in the Treaty of Lisbon, which makes the newly established competences regarding the criminal justice system subject to a so-called emergency brake, allowing the Council representative of a Member State – who is ultimately accountable to Parliament – to veto directives affecting criminal law, at least as to their own country, by invoking ‘fundamental aspects of its criminal justice system’ (Art. 83(3) TFEU).

359

(3) The fight against especially serious crime that takes advantage of territorial restrictions on law enforcement by the states, or – as in the case of corruption – jeopardises the proper functioning of the rule of law and democracy in the European Union, may be a reason capable of justifying the transfer of sovereign powers in this area. In this context, the Treaty of Lisbon provides that such crime must have a cross-border dimension (Art. 83(1) subpara. 1 TFEU) resulting from the nature or impact of the criminal offences or from a special need to combat them on a common basis (Art. 83(1) subpara. 1 TFEU). Such a special need cannot be based on the mere political will of the relevant institutions. It cannot be separated from the nature or impact of the offences concerned, given that it is unclear wherefrom the special need to combat them on a common basis should arise, if not from the nature and impact of the offences concerned.

360

Protecting the primary democratic sphere under the Basic Law requires a narrow interpretation, which must also form the basis of the decision made by the German representative in the Council when a decision concerning the mutual recognition of judgments and judicial decisions or criminal procedural law in general is to be adopted (Art. 82(1) and (2) TFEU).

361

With regard to the annex competence, which allows for the approximation of criminal law in areas that have been harmonised (Art. 83(2) TFEU), the Act of Approval can only be found to be in conformity with the Constitution due to the fact that this competence must be interpreted narrowly under the Treaty. Compared to the prior legal framework, the annex competence gives rise to a significant expansion of competences concerning the criminal justice system. Wherever the EU has the competence to harmonise the law, it can enact directives to establish minimum rules with regard to the definition of criminal offences and sanctions to ‘ensure the effective implementation of a Union policy’. As this rule-making competence in the field of criminal law is potentially limitless, the provision in question is incompatible with the principle of a specific and limited conferral of sovereign powers and with the necessary protection of the domestic legislator, which is democratically bound by the majority decision of the people.

362

Nevertheless, the Treaty of Lisbon contains sufficient indications allowing an interpretation in conformity with the Constitution. Firstly, the constituent elements authorising law-making in the field of criminal law are narrow in their wording. They provide that the approximation of such domestic laws must be ‘essential to ensure the effective implementation of a Union policy’ in the areas subject to harmonisation measures (Art. 83(2) first sentence TFEU). In order for this exceptional constituent element to be met, and for the assumption that the annex authorisation to enact criminal laws has been transferred, it must be clearly established that an enforcement deficit does in fact exist that can only be eliminated through penalties. These requirements also apply to the annex competence for criminal law presumed to exist by the European courts.

363

The general authorisation to define criminal offences and sanctions under Art. 83(1) TFEU must also be interpreted restrictively. This is confirmed by the catalogue of particularly serious crimes set out in Art. 83(1) subpara. 2 TFEU and by the requirement that the offences in question must be particularly serious and have a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. The catalogue clearly demonstrates that the crimes in question, for which the Treaty authorises the adoption of minimum rules that must leave substantial scope to the Member States, must be particularly serious and typically have a cross-border dimension. This notwithstanding, when a community of law is prevented from deciding what conduct is punishable and what sanctions to impose in accordance with its own values, this affects democratic self-determination in a particularly sensitive manner. This is all the more so the closer these values are linked to historical experiences, religious traditions and other aspects essential to people’s sense of self and their community. The authorisation to transfer the competence to enact criminal laws is therefore limited in these areas, and it is always necessary to comply with the requirements regarding individual transfers of sovereign powers (Art. 23(1) second sentence of the Basic Law) when expanding the catalogue of crimes subject to EU law-making. The use of the blanket authorisation under Art. 83(1) subpara. 3 TFEU in order to extend the catalogue of particularly serious, cross-border crime ‘on the basis of developments in crime’ amounts to an expansion of the written competences of the EU, which requires a statutory basis as set out in Art. 23(1) second sentence of the Basic Law. When implementing the minimum rules, it must furthermore be ensured that the European framework provisions only address the cross-border dimension of a specific criminal offence. The competence of the Member States for criminal law, which is in principle beyond the reach of European integration, could be protected by minimum rules that do not cover offences in their entirety (cf. Art. 2(2) Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ L 190/1), but merely a specific constituent element.

364

Moreover, the competences of the European Union for the criminal justice system must be interpreted in accordance with the requirements arising from the principle of culpability. Criminal law is based on the principle of culpability. This principle requires the individual to have personal autonomy, to act in self-determination and to be able to decide between what is right and wrong based on their own free will. The protection of human dignity is based on the idea of human beings as intellectual-moral beings with the inherent aspiration to be free to determine their own being and to develop (cf. BVerfGE 45, 187 <227>). In the criminal justice system, Art. 1(1) of the Basic Law informs the conception of the essence of punishment and the relationship between guilt and atonement (cf. BVerfGE 95, 96 <140>). Thus, the principle that only culpable conduct may be punished is rooted in the guarantee of human dignity enshrined in Art. 1(1) of the Basic Law (cf. BVerfGE 57, 250 <275>; 80, 367 <378>; 90, 145 <173>). The principle of culpability forms part of the constitutional identity declared inalienable by Art. 79(3) of the Basic Law, which is also protected from encroachments by public authority exercised by a supranational organisation.

365

Given the significance of criminal law for individual liberty, special additional requirements must be met at least with regard to the provision granting a Member State special rights in the legislative procedure (Art. 82(3), Art. 83(3) TFEU). From the perspective of German constitutional law, the necessary level of democratic legitimation provided by national Parliaments can only be ensured if the exercise of the Member State rights set out in Art. 82(3) and Art. 83(3) TFEU by the German representative in the Council is made only on the basis of instructions of the German Bundestag and, insofar as the rules on legislation so require, of the Bundesrat (cf. also the resolution of the German Bundestag of 24 April 2008 accompanying the Treaty of Lisbon <BTDrucks 16/8917, p. 6, Minutes of Plenary Proceedings of the German Bundestag, Plenarprotokoll – BTPlenprot 16/157, p. 16482 B>). All in all, the significance of the specific shape given to the authorisations under Art. 82(2) and Art. 83(1) and (2) TFEU approaches that of a Treaty change and requires the discharge of responsibility with regard to European integration of the legislative organs in the context of the emergency brake procedure.

366

Insofar as the European Union wants to apply, in the area of the criminal justice system, the general passerelle procedure pursuant to Art. 48(7) TEU – Lisbon to the authorisation to establish minimum rules for other specific aspects of criminal procedure in order to adopt Council decisions by qualified majority rather than by unanimity, the aforementioned requirements applicable to the general passerelle procedure must be met. The German representative in the European Council may only consent to Treaty change if the Bundestag and the Bundesrat have enacted a law pursuant to Art. 23(1) of the Basic Law, within a time limit to be determined that must be based on the purpose of Art. 48(7) subpara. 3 TEU – Lisbon. This also applies in the event that the general passerelle procedure is to be applied to the identification of other areas of crime under Art. 83(1) subpara. 3 TFEU so as to allow Council decisions by qualified majority rather than by unanimity.

367

bb) (1) The Treaty of Lisbon also expands existing options of the European Union in the area of judicial cooperation in civil matters. The provision in Art. 81 TFEU is based on the principle of mutual recognition of decisions. This principle has already played a significant role in previous practice, and is now enshrined in the Treaty as the basis for judicial cooperation. The Treaty of Lisbon supplements the competence for the approximation of laws, which until now was based on Art. 65 of the EC Treaty, with the competence for measures aimed at ensuring effective access to justice, the development of alternative methods of dispute settlement and support for the training of the judiciary and judicial staff (Art. 81(2)(e), (g) and (h) TFEU). The provision contains an exhaustive list of the group of cases that may be subject to harmonisation in case of cross-border implications. Whether the criterion of necessary harmonisation must be interpreted in such a way that it only concerns the proper functioning of the internal market (cf. BTDrucks 16/8300, p. 175) need not be decided here. It already follows from the principle of subsidiarity (Art. 5(1) second sentence and 5(3) TEU – Lisbon) that the Treaty on the Functioning of the European Union only allows harmonisation if it is necessary. Insofar as the harmonisation measures concern family law, the Council decides unanimously after consulting the European Parliament (Art. 81(3) subpara. 1 TFEU). In this area, the Council can unanimously decide to use the ordinary legislative procedure for specific aspects of family law (Art. 81(3) subpara. 2 TFEU). National Parliaments can make known their opposition thereto (Art. 81(3) subpara. 3 TFEU).

368

(2) In the European Union, the administration of justice is a competence that in principle falls to the Member States. It is true that Community law requires the Member States to grant effective legal protection, which may not be undermined by national legislation (cf. CJEU, Judgment of 15 May 1986, C-222/84, Johnston, ECR 1986, p. 1651 para. 17 ff.; CJEU, Judgment of 11 September 2003, C-13/01, Safalero, ECR 2003, p. I-8679 para. 50). However, this does not affect the competence of the Member States for the organisation of their justice systems and their staffing and funding. The overall context of Chapter 3 in Part V of the Treaty on the Functioning of the European Union shows that Art. 81(2) TFEU does not transfer a competence to the European Union that would limit this Member State responsibility. Nor are the guarantee of effective legal protection following from Art. 19(4) of the Basic Law and the right of access to justice rooted in the rule of law principle, which are also recognised in EU law ([…]), restricted, for instance, by the obligation to develop alternative methods of dispute settlement (Art. 81(2)(g) TFEU). Citizens’ access to a court can generally not be restricted by primary or secondary law or rendered more difficult by non-judicial preliminary proceedings.

369

Insofar as Art. 81(3) subpara. 1 TFEU provides, in deviation from Art. 81(2) TFEU, that measures concerning family law with cross-border implications are established by the Council acting in accordance with a special legislative procedure, this must be considered a mere procedural deviation that strengthens the Member States’ powers compared to the rules for general civil law; it does not amount to a substantive expansion of Council competences for measures concerning family law that do not correspond with the catalogue in Art. 81(2) TFEU. If a different view were to be adopted, it would have to be ensured that – without prejudice to the protected core that makes up the constitutional identity – no use is made of the competence pursuant to Art. 81(3) subpara. 1 TFEU without the constitutive involvement of the German legislative organs.

370

cc) The Treaty of Lisbon also changes the provisions governing the common commercial policy. In particular, this concerns foreign direct investment as well as trade in services and the commercial aspects of intellectual property (Art. 207(1) TFEU).

371

Under currently applicable Community law, the common commercial policy, that is, the external representation of the internal market in commercial policy matters at global level, is already an exclusive competence of the European Community (cf. CJEU, Opinion 1/94 of 15 November 1994, ECR 1994, I-5267 para. 22 ff.). However, the common commercial policy has thus far not included foreign direct investment, trade in services or the commercial aspects of intellectual property. As the law currently stands, the European Community does not have a competence for direct investment, and only has a concurrent competence for trade in services and the commercial aspects of intellectual property (Art. 133(5) EC Treaty). The Treaty of Lisbon will change this. Pursuant to Art. 3(1)(e) in conjunction with Art. 207(1) TFEU, the European Union is to have the exclusive competence for the common commercial policy, including the aforementioned matters.

372

(1) Accordingly, the matters for which the EU will have exclusive competence will include agreements within the framework of the World Trade Organization (WTO), such as the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). As a result, there is no longer a basis for the previous case-law of the Court of Justice of the European Communities, which required that the Agreement Establishing the World Trade Organization (WTO Agreement) of 15 April 1994 (OJ 1994 L 336/3) be concluded and ratified as a so-called mixed agreement by both the European Communities and the Member States, based on the then shared competence in this regard (cf. CJEU, Opinion 1/94 of 15 November 1994, ECR 1994, p. I-5267 paras. 98 and 105; regarding the status of an international treaty as a mixed agreement, cf. also CJEU, Opinion 1/78 of 4 October 1979, ECR. 1979, p. 2871 para. 2; CJEU, Opinion 2/91 of 19 March 1993, ECR 1993, p. I-1061 paras. 13 and 39).

373

In the future, the European Union is to have exclusive competence for the conclusion and ratification of international agreements in the context of the common commercial policy, including the areas newly included in Art. 207(1) TFEU; the necessity and possibility of (joint) conclusion by the Member States and the associated involvement of national Parliaments in accordance with their constitutional requirements (Art. 59(2) of the Basic Law) no longer exists. Conversely, the role of the European Parliament, which under the current law does not even have to be heard when agreements in the context of the common commercial policy are concluded, will be strengthened. Under Art. 207(2) TFEU, a framework for implementing the common commercial policy is defined by means of regulations in accordance with the ordinary legislative procedure. Pursuant to the standard in Art. 218(6) subpara. 2(a) no. v TFEU, the European Parliament must give its consent to the conclusion of agreements ([…]).

374

The exclusive competence discussed above gives the European Union the sole power to decide on international trade agreements which may result in fundamental changes to the internal order of the Member States. The aforementioned shift in competences resulting from the Treaty of Lisbon affects the Member States in a manner that goes beyond the loss of their own competence to conclude international trade agreements and the associated elimination of the Bundestag’s and Bundesrat’s legislative participation under Art. 59(2) of the Basic Law, insofar as the membership status of the EU Member States in the World Trade Organization could be reduced to a mere formality. Voting rights in the WTO bodies would only be exercised by the European Union. Moreover, Member States would lose their right to be a legal party in dispute settlement cases before the World Trade Organization. Member States would also be excluded from global negotiations regarding new or changed agreements in the context of the expanded common commercial policy – the so-called world trade rounds.

375

It is not necessary to decide here whether and to what extent membership of the EU Member States in the World Trade Organization would no longer be substantive, but only institutional and formal in nature. Under no circumstances can the Treaty of Lisbon force Member States to give up their membership status. This is especially the case for negotiations concerning multilateral trade relations within the meaning of Art. III(2) of the WTO Agreement, whose potential future substance is not determined by EU law and for which – depending on developments in future trade rounds – the Member States may therefore be competent. Therefore, the Treaty cannot impermissibly restrict the statehood required and protected by the Basic Law and the principle of sovereignty of the people through a loss of capacity to act in significant areas of international relations. The World Trade Organization continues to be the central forum for international dialogue on trade matters and the negotiation of trade agreements. Even if the Member States are frequently represented by the Commission in practice, they must be present, in both legal and diplomatic terms, to be able to participate in the discourse on fundamental issues regarding society, economic and social policy and to explain and debate the arguments and outcomes at the national level. When the Federal Government provides notification to the German Bundestag and the Bundesrat regarding topics of the world trade rounds and the adoption of negotiating directives (Art. 218(2) TFEU), thereby enabling these bodies to ensure the EU’s adherence to the European integration agenda and to scrutinise the Federal Government’s activities, it does not merely carry out its general obligation to provide information (cf. BVerfGE 57, 1 <5>; 70, 324 <355>; 105, 279 <301 ff.>; 110, 199 <215>); it also has a constitutional obligation to do so given the joint responsibility with regard to European integration and the differentiation of tasks among the constitutional organs as provided by the principle of the separation of powers.

376

The notion of Member States taking gradual steps away from their status as legal subjects in external relations in favour of a European Union whose actions are increasingly analogous to those of a state by no means corresponds with a foreseeable trend made irreversible by the Treaty of Lisbon that would lead to the de facto necessity of the creation of a federalised state. On the contrary, the developments that have occurred thus far – a cooperative, mixed and parallel membership – could even be a model for other international organisations or other associations of states. Nevertheless, if the development of the European Union were to continue in a direction equivalent to that of a state on the basis of the Treaty of Lisbon, which is open to developments in this respect, this would run counter to constitutional foundations. The Treaty of Lisbon does not amount to such a step.

377

(2) A different legal basis must be used to assess the framework for foreign direct investment. Investment protection is an independent category of international law, for which the context of world trade law is only of marginal importance (cf. the Agreement on Trade-Related Investment Measures, OJ 1994 L 336/100). The institutional independence of investment protection reflects disagreements regarding the protection of property on an international level ([…]). For decades, there have been far-reaching, ideologically motivated differences of opinion on the socio-political significance of the fundamental right to property (cf. BVerfGE 84, 90 ff.; 94, 12 ff.; 112, 1 ff.).

378

Many states have concluded bilateral agreements concerning the protection of foreign assets. These foreign assets, which in 2007 amounted to EUR 5,004 billion for the Federal Republic of Germany ([…]), fall for the most part under the scope of application of 126 bilateral investment protection agreements currently in force ([…]). At a global level, there were a total of 2,608 bilateral investment protection agreements at the end of 2007 (cf. UNCTAD, World Investment Report 2008, Transnational Corporations, and the Infrastructure Challenge, p. 14).

379

In expanding the common commercial policy to ‘foreign direct investment’ (Art. 207(1) TFEU), the Treaty of Lisbon gives the European Union exclusive competence for this area. However, there is much to suggest that the term ‘foreign direct investment’ only covers those investments that serve the purpose of acquiring a controlling interest in an enterprise ([…]). This would mean that the exclusive competence only applies to investments of this type, while investment protection agreements going beyond such investments would have to be concluded as mixed agreements.

380

The continued validity of legacy agreements is not at risk. International agreements concluded by the Member States before 1 January 1958 are generally not affected by the Treaty establishing the European Community (Art. 307(1) EC Treaty; Art. 351(1) TFEU). While this provision is not directly applicable in many cases, as bilateral investment protection agreements are generally more recent, the underlying legal precept is that a legal practice in the Member States is in principle not affected by later steps of integration ([…]). Given the shared competence in investment matters, the European Union must authorise existing investment protection agreements of the Member States (cf. Council Decision 2001/855/EC of 15 November 2001 authorising the automatic renewal or continuation in force of provisions governing matters covered by the common commercial policy contained in the friendship, trade and navigation treaties and trade agreements concluded between Member States and third countries, OJ L 320/13). This is in line with the standing practice – whether expressly declared or implied – with regard to the continuation in force of international agreements of the Member States.

381

dd) The constitutive requirement of a parliamentary decision regarding the deployment of the armed forces abroad continues to apply after the Treaty of Lisbon has entered into force. The Treaty of Lisbon does not confer any competence on the EU to make use of a Member States’ armed forces without obtaining the consent of the Member State concerned or its Parliament.

382

(1) The Basic Law’s requirement of a parliamentary decision regarding the deployment of the armed forces is engaged when there are specific reasons to expect that, based on the context of the deployment in question and the particular legal and factual circumstances, German soldiers will be involved in armed conflict. The Basic Law’s provisions relating to the armed forces are aimed at not leaving the potential of power inherent in the Bundeswehr to the executive, but at integrating it, as an army of Parliament, into the democratic constitutional order under the rule of law (cf. BVerfGE 90, 286 <381 f.>; 121, 135 <153 ff.>).

383

The requirement of a parliamentary decision regarding the deployment of the armed forces gives rise to an effective co-decisional right of the German Bundestag in foreign policy matters. The Basic Law generally does not permit the deployment of the armed forces without Parliament’s consent; only in exceptional cases may the Federal Government take a preliminary decision on the deployment of the armed forces – in cases of danger requiring imminent action (Gefahr im Verzug) – to ensure that the Federal Republic of Germany’s ability to defend itself and to meet its alliance commitments is not jeopardised (cf. BVerfGE 90, 286 <388 f.>).

384

(2) The wording of the Treaty of Lisbon does not oblige the Member States to deploy national armed forces for military operations of the European Union. The wording and legislative history of Art. 42 ff. TEU – Lisbon clearly demonstrate the Member States’ aim to retain the sovereign decision on the deployment of their armed forces, with the final say reserved for the Constitution. Art. 42(7) subpara. 1 first sentence TEU – Lisbon, which, for the first time, introduces a collective defence clause for the Member States, does not rule out this interpretation of the Treaty of Lisbon. If a Member State is the victim of armed aggression in its territory, ‘the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter’.

385

[…]

386

At any rate, it is clear from the wording and systematic concept of Art. 42 TEU – Lisbon that the collective defence clause of the Member States does not go beyond the collective defence clause under Art. 5 of the North Atlantic Treaty of 4 April 1949 (BGBl 1955 II p. 289). The latter does not necessarily require the use of military resources, but instead grants NATO members room for manoeuvre in terms of the kind of assistance to be provided (cf. BVerfGE 68, 1 <93>). What is more, the Treaty of Lisbon expressly sets out that the collective defence clause will not prejudice ‘the specific character of the security and defence policy of certain Member States’ (Art. 42(7) subpara. 1 second sentence TEU – Lisbon) – a statement which the Treaty reiterates in other places (cf. Art. 42(2) subpara. 2 first sentence TEU – Lisbon and Declarations Nos. 13 and 14, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, concerning the common foreign and security policy). This gives Member States the possibility ‒ guaranteed under EU primary law ‒ to invoke reservations of principle with regard to the collective defence clause. The Basic Law’s requirement of a parliamentary decision regarding the deployment of the armed forces can be satisfied within the scope of this reservation.

387

(3) The requirement of a parliamentary decision regarding the deployment of the armed forces also cannot be circumvented by the Member States’ duties to take action arising from secondary law. It is true that the Treaty of Lisbon authorises the Council to adopt decisions on missions ‘in the course of which the Union may use civilian and military means’ (Art. 43(1) and (2) TEU – Lisbon). The term ‘civilian and military means’ could be interpreted as encompassing specific force contingents of the Member States. However, the previous understanding of the Member States in the context of the common foreign and security policy indicates that the term should not be interpreted in this way. According to the previous understanding, military contributions were never required by law, but were, at most, politically ‘obliged’.

388

Even if a broad interpretation of Art. 43(2) TEU – Lisbon were nevertheless adopted, the Council would have to adopt such decisions acting unanimously (cf. Art. 31(1) and (4), Art. 42(4) TEU – Lisbon). In that case, the German representative in the Council would be required under constitutional law to withhold their consent to any proposal for decision that would violate or circumvent the Basic Law’s requirement of a parliamentary decision regarding the deployment of the armed forces. In such a situation, the requirement of unanimity in the Council cannot be changed to qualified majority voting by a Council decision (cf. Art. 31(2) and (3) TEU – Lisbon). Decisions ‘with military or defence implications’ do not fall within the scope of application of the general passerelle clause under Art. 48(7) subpara. 1 second sentence TEU – Lisbon or the special passerelle clause under Art. 31(4) TEU – Lisbon. Potential agreement among the Member States to deploy armed forces under the aegis of the European Union could not give rise to a legal duty to take action that could trump the constitutive requirement of a parliamentary decision arising from Art. 24(2) of the Basic Law, which is more specific in this respect than Art. 23 of the Basic Law.

389

(4) The Treaty of Lisbon provides the basis for the Member States to progressively frame a common defence policy. Such a common defence policy, which is also possible under the currently applicable version of Art. 17(1) TEU, will lead to a common defence, ‘when the European Council, acting unanimously, so decides’ and the Member States have adopted such a decision ‘in accordance with their respective constitutional requirements’ (Art. 42(2) subpara. 1 TEU – Lisbon).

390

The requirement of ratification by the Member States makes clear that the European Union has not yet taken the step that would make it a system of mutual collective security, whether under the applicable version of primary law or with the entry into force of the Treaty of Lisbon. If the Member States were to decide to adopt a decision to this effect, a duty of military cooperation on the part of the Member States could only arise under international law. Even after the entry into force of the Treaty of Lisbon, the common foreign and security policy, including the common security and defence policy, does not form part of supranational law (cf. Art. 24(1), Art. 40 TEU – Lisbon, Art. 2(4) TFEU and Declaration No. 14, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, concerning the common foreign and security policy).

391

If the European Council were to unanimously adopt a decision on common defence, the principle of unanimity applicable to the common security and defence policy (cf. Art. 31(1) and (4), Art. 42(4) TEU – Lisbon) would guarantee that no Member State could be required to participate in a military mission of the European Union against its will. The requirement of a parliamentary decision regarding the deployment of the armed forces could not be circumvented by way of Treaty change in accordance with the ordinary revision procedure (Art. 48(2) to (5) TEU – Lisbon), which would replace the principle of unanimity with qualified majority voting. The Constitution bars Germany from participating in such Treaty change.

392

ee) The Treaty of Lisbon does not restrict the Bundestag’s socio-political latitude to such an extent that it would impair the principle of the social state (Art. 23(1) third sentence in conjunction with Art. 79(3) of the Basic Law) in a constitutionally significant manner and thereby impermissibly curtail necessary democratic decision-making powers.

393

[…]

394

Since the start of the process of European integration, the EU has had to address the criticism that it neglects the social dimension of society and that its approach of integrating the market unduly restricts the democratic latitude of the Member States in socio-political matters. The proposition that social matters are not part of the objectives of the European integration process was based on an unspoken comparison with a state order, even though a functional integration, with the aim of creating a common market, did not necessarily have to fulfil societal expectations of unity ([…]). Social issues were addressed at an early stage, including during the negotiations regarding the Treaty Establishing the European Economic Community, and were incorporated in the Treaty in areas such as the agricultural market and equal pay for women and men (Art. 141 EC Treaty; Art. 157 TFEU). Since then, social issues have become ever more important with each reform of the legal foundations of European integration and have been strengthened in primary law ([…]).

395

So it was that the Social Agreement, which had emerged as an instrument under international law that was concluded separately from the Treaty of Maastricht due to a lack of political consensus, was incorporated into Community law in 1997 with the Treaty of Amsterdam. Art. 136 to Art. 150 of the EC Treaty set out competences, inter alia, in the areas of labour law, social security, education and further training, co-determination, dialogue between management and labour and working conditions ([…]). These provisions are supplemented by Art. 13 of the EC Treaty, which forms the basis of the anti-discrimination directives, Art. 39 of the EC Treaty, which governs the free movement of workers, and the social fundamental rights of the Charter of Fundamental Rights, to which the entire Title IV of the Charter (‘Solidarity’) is dedicated (Art. 27 to Art. 38 Charter of Fundamental Rights). In particular, the Court of Justice of the European Communities has understood EU citizenship as the nucleus of European solidarity for several years now, and has developed its case-law in this respect on the basis of Art. 18 in conjunction with Art. 12 of the EC Treaty. This line of case-law is an attempt to forge a European social identity by strengthening the participation of EU citizens in the social systems of the Member States ([…]).

396

The Treaty of Lisbon is in line with these developments: In its second recital, the preamble of the Treaty on the Functioning of the European Union expresses the resolve to ensure ‘the economic and social progress of [the Member] States by common action’. The objectives in the Treaty on European Union are adapted by providing that the European Union works towards ‘a highly competitive social market economy, aiming at full employment and social progress’ (Art. 3(3) subpara. 1 TEU – Lisbon). At the same time, the objective of ‘free and undistorted competition’ is removed from the operative part of the Treaty on European Union and transferred to Protocol No. 27 on the internal market and competition. A new horizontal clause (Art. 9 TFEU) is designed to ensure that the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health is taken into account in all policies and activities of the European Union (the Treaty of Lisbon introduces other new features in social matters by way of Art. 5(3) <coordination of Member States’ social policies>, Art. 21(3) <EU citizenship and social security>, Art. 152 <role of the social partners> and Art. 165(2) TFEU <social role of sport>; Protocol No. 29 sets out the link between public broadcasting and the social needs of each society).

397

The legal framework for action corresponds to political initiatives and programmes that give effect to the law and specify it. […]

398

Moreover, the case-law of the Court of Justice, which until recently has prompted criticism regarding the ‘one-sided market orientation’ of the European Union, but has also pointed out a number of elements for a ‘social Europe’, must be taken into account. In its case-law, the Court of Justice has developed principles that strengthen the social dimension of the European Union. The Court of Justice has recognised several important social issues as overriding requirements of public interest that are capable of justifying restrictions of market freedoms under Community law. These include, for example, the protection of workers (CJEU, Judgment of 15 March 2001, C-165/98, Mazzoleni, ECR 2001, p. I-2189 para. 27), the financial balance of the social security system (CJEU, Judgment of 13 May 2003, C-385/99, Müller-Fauré, ECR 2003, p. I-4509 para. 73), requirements of social insurance services (CJEU, Judgment of 17 June 1997, C-70/95, Sodemare, ECR 1997, p. I-3395 para. 32) and order in society (CJEU, Judgment of 21 October 1999, C-67/98, Zenatti, ECR 1999, p. I-7289 para. 31) as well as protection against social dumping (CJEU, Judgment of 18 December 2007, C-341/05, Laval, ECR 2007, p. I-11767 para. 103). In its decision of 11 December 2007, the Court of Justice even recognised a European right to strike (CJEU, C-438/05, Viking, ECR 2007, p. I-10779 para. 44; […]).

399

In light of the state of the law, the developments and the basic policy orientation of the EU set out above, the wide latitude that exists in social matters, including at European level, has not been exceeded. Contrary to the expressed fear of the complainants in proceedings V., it is not ascertainable that the Member States would be deprived of the right and the practical ability to make conceptual decisions on social security systems and other measures of social and labour market policy in their primary democratic sphere.

400

Insofar as Art. 48(1) TFEU authorises the European Union to adopt such measures in the field of social security as are necessary to provide freedom of movement for workers, a member of the Council may request, by way of the emergency brake procedure, that the matter be referred to the European Council so as to suspend the ordinary legislative procedure (Art. 48(2) TFEU). Just as with the emergency brake procedure for matters concerning the criminal justice system (Art. 82(3) and Art. 83(3) TFEU), the German government representative in the Council may only exercise this Member State right on the basis of instructions of the German Bundestag and, insofar as the rules on legislation so require, of the Bundesrat.

401

2. The Act Amending the Basic Law (Articles 23, 45 and 93) (Amendment Act), which is a constitution-amending law, does not raise formal or substantive concerns and is therefore compatible with the Constitution.

402

When reviewing a constitutional amendment, the Federal Constitutional Court assesses whether the requirements for constitutional amendments following from Art. 79(3) of the Basic Law have been satisfied (cf. BVerfGE 30, 1 <24>; 94, 12 <33 f.>; 109, 279 <310>). There are no indications that any elements of the Amendment Act could affect the principles enshrined in Art. 1 and Art. 20 of the Basic Law.

403

a) This applies in particular to Art. 1 no. 1 of the Amendment Act, which incorporates into the Constitution the right to bring an action on grounds of infringement of the principle of subsidiarity as a minority right (Art. 23(1a) second sentence of the Basic Law, new version). The object and purpose of the Bundestag’s obligation to bring an action is to allow the parliamentary minority to assert rights of the Bundestag, including when the Bundestag chooses to refrain from exercising its rights vis-à-vis the Federal Government, which it supports politically. This serves to provide parliamentary groups in opposition, i.e. the parliamentary minority that acts as a counterweight to the government majority, with recourse to the Court of Justice of the European Union in order to give effect to the rights reserved for Parliament within the system of European integration (regarding Organstreit proceedings cf. BVerfGE 90, 286 <344>; 117, 359 <367 f.>; regarding the design of the subsidiarity action as a parliamentary minority right cf. also Art. 88-6 § 3 of the French Constitution of 4 October 1998 in the version of 21 July 2008).

404

The insertion of section (1a) into Art. 23 of the Basic Law also does not raise constitutional concerns with regard to the quorum of one quarter of the members of the Bundestag. It is true that the obligation of the Bundestag to lodge a subsidiarity action if only a quarter of its members call on it to do so (Art. 23(1a) second sentence of the Basic Law, new version) deviates from the principle of majority laid down in Art. 42(2) of the Basic Law. This is not objectionable, however, since the matter at issue here does not concern a decision with regulatory effects, but instead the power to have recourse to a court (cf. Art. 93(1) no. 2 of the Basic Law).

405

b) The power to delegate rights under Art. 45 third sentence of the Basic Law (new version), envisaged in Art. 1 no. 2 of the Amendment Act, does not violate democratic principles within the meaning of Art. 79(3) of the Basic Law. The Bundestag appoints a Committee on European Union Affairs, which it may authorise to exercise the rights of the Bundestag under Article 23 of the Basic Law vis-à-vis the Federal Government. The Bundestag may also empower the Bundestag Committee on European Affairs to exercise the rights granted to the Bundestag under the contractual foundations of the European Union. It is not the grant of these powers, but rather their exercise that may, in the individual case, raise constitutional concerns.

406

3. a) The Act Strengthening the Rights of the Bundestag and of the Bundesrat in Matters Concerning the European Union violates Art. 38(1) in conjunction with Art. 23(1) of the Basic Law insofar as the Act does not provide, to the extent necessary, for participation rights of the Bundestag and the Bundesrat.

407

a) The Strengthening Act, which has not yet been promulgated by the Federal President, is designed to create a domestic framework for the exercise of the rights that the Treaty of Lisbon grants to the Bundestag and – to the extent it must be considered as a chamber of a national Parliament – the Bundesrat (BTDrucks 16/8489, p. 7). The Act governs the exercise of rights in the context of the procedure for monitoring the subsidiarity principle (Art. 1 § 2 and § 3 of the Strengthening Act) and the right, expressly provided for in the Treaty of Lisbon, to reject proposed legislative acts of the European Union that change the Treaties by way of the passerelle procedure under Art. 48(7) subpara. 3 TEU – Lisbon and Art. 81(3) subpara. 3 TFEU (Art. 1 § 4 of the Strengthening Act).

408

The Act also provides for the possibility of the Bundestag plenary to authorise the Committee on the Affairs of the European Union, appointed by the Bundestag under Art. 45 of the Basic Law, to exercise rights of the Bundestag vis-à-vis EU institutions (Art. 1 § 5 of the Strengthening Act) – subject to the restrictions arising from the limits set by the Strengthening Act on decision-making in relation to the subsidiarity action and the opposition rights in the context of the passerelle procedure (cf. BTDrucks 16/8489, p. 8).

409

b) Insofar as the Member States design the EU Treaties in such a way that – on the basis of the principle of conferral – Treaty change can be effected by EU institutions, either acting independently or playing a decisive role, without a ratification procedure, even when unanimity is required in the Council, the national constitutional organs have a special responsibility in the context of participation. In Germany, this responsibility with regard to European integration must satisfy the domestic constitutional requirements, in particular those arising from Art. 23(1) of the Basic Law. The Strengthening Act does not satisfy these requirements insofar as the Bundestag and the Bundesrat have not been granted sufficient participation rights for Treaty amendment and law-making procedures.

410

aa) The Strengthening Act serves to transpose and specify the constitutionally required participation rights of the legislative bodies in the process of European integration in domestic statutory law. The Agreement between the German Bundestag and the Federal Government in matters concerning the European Union (Vereinbarung zwischen dem Deutschen Bundestag und der Bundesregierung über die Zusammenarbeit in Angelegenheiten der Europäischen Union) of 28 September 2006 (BGBl I p. 2177) is not sufficient in this respect, either with regard to its unclear legal nature ([…]) or with regard to its substance (cf., inter alia, the resolution of the German Bundestag of 24 April 2008 accompanying the Treaty of Lisbon <BTDrucks 16/8917, p. 6, BTPlenprot 16/157, p. 16482 B>). The Bundestag and the Bundesrat must therefore be given the opportunity to review the procedures and forms of their participation in accordance with the reasons set forth in this judgment.

411

bb) When making this legislative decision, the Bundestag and the Bundesrat must take into account that they must discharge their responsibility with regard to European integration in a number of cases of dynamic Treaty development:

412

(1) While the ordinary revision procedure (Art. 48(2) to (5) TEU – Lisbon) is subject to the traditional requirement of ratification applicable to international treaties, the Constitution also requires an act of approval pursuant to Art. 23(1) second sentence and, where applicable, third sentence of the Basic Law for changes in primary law made by way of the simplified revision procedure (Art. 48(6) TEU – Lisbon). The same applies to the amendment provisions corresponding to Art. 48(5) TEU – Lisbon (Art. 42(2) subpara. 1 TEU – Lisbon; Art. 25(2), Art. 218(8) subpara. 2 second sentence, Art. 223(1) subpara. 2, Art. 262 and Art. 311(3) TFEU).

413

(2) Within the scope of application of the general passerelle procedure under Art. 48(7) TEU – Lisbon and that of the special passerelle clauses, the legislator may neither relinquish its necessary and constitutive right of consent with regard to initiatives of the European Council or the Council that are aimed at changing to qualified majority voting from unanimity for decision-making in the Council or switching from the special to the ordinary legislative procedure, nor may it give its consent in the abstract in anticipation of future draft decisions. By consenting to Treaty change under primary law within the scope of application of the general and the special passerelle clauses, the Bundestag and the Bundesrat determine the scope of the binding legal obligations deriving from an international treaty and assume political responsibility vis-à-vis the citizens (cf. BVerfGE 104, 151 <209>; 118, 244 <260>; 121, 135 <157>). In this regard, the legal and political responsibility incumbent upon Parliament is not limited to the one-time act of granting approval – including when it comes to European integration; rather, Parliament remains responsible also with regard to the Treaty’s further execution. Tacit consent by the Bundestag and the Bundesrat is therefore not sufficient to discharge this responsibility.

414

(a) Insofar as the general passerelle procedure under Art. 48(7) subpara. 3 TEU – Lisbon and the special passerelle clause under Art. 81(3) subpara. 3 TFEU grant a right of opposition to national Parliaments, this is not equivalent to the requirement of ratification. It is therefore necessary that the German representative in the European Council or the Council may only consent to Treaty change if the Bundestag and the Bundesrat have enacted a law within the meaning of Art. 23(1) second sentence of the Basic Law authorising them to do so, within a time limit to be determined, which must be based on the purpose of Art. 48(7) subpara. 3 TEU – Lisbon.

415

Art. 1 § 4(3) no. 3 of the Strengthening Act conflicts with the purpose of the right to opposition – the effective protection of the Member States from unforeseeable Treaty changes – to the extent that, with regard to these passerelle clauses, the Bundestag only holds decision-making power regarding the exercise of the right to opposition in case of concurrent legislative competences if the Bundesrat does not object. A differentiated design of the exercise of the right to opposition, like the one in Art. 1 § 4(3) no. 3 of the Strengthening Act, does not satisfy the requirements arising from the general responsibility with regard to European integration of the German Bundestag. It is therefore necessary under constitutional law to grant the Bundestag the decision-making power regarding the exercise of the right to opposition in the cases in question, regardless of the decision of the Bundesrat.

416

(b) The European Union can only make law that is binding on the Federal Republic of Germany on the basis of the other special passerelle clauses in Art. 31(3) TEU – Lisbon, Art. 153(2) subpara. 4, Art. 192(2) subpara. 2, Art. 312(2) subpara. 2 and Art. 333(1) and (2) TFEU, which do not provide for a right to opposition of national Parliaments, if the German Bundestag and, insofar as the rules regarding legislation so require, the Bundesrat have given their consent within a time limit to be determined, which must be based on the purpose of Art. 48(7) subpara. 3 TEU – Lisbon. The tacit approval of the Bundestag or of the Bundesrat may not be considered to constitute consent.

417

(3) Insofar as the flexibility clause in Art. 352 TFEU is to be used, this requires a law within the meaning of Art. 23(1) second sentence of the Basic Law in each instance.

418

(4) In the context of the emergency brake procedure under Art. 48(2), Art. 82(3) and Art. 83(3) TFEU, the Federal Government may only act on the basis of instructions of the German Bundestag and, insofar as the rules on legislation so require, of the Bundesrat.

419

(5) In the area of judicial cooperation in criminal matters, the exercise of Art. 83(1) subpara. 3 TFEU requires a law within the meaning of Art. 23(1) second sentence of the Basic Law. Insofar as the general passerelle clause is to be applied in the context of Art. 82(2) subpara. 2(d) and Art. 83(1) subpara. 3 TFEU, this requires – just as in all other cases where the general passerelle clause is applied – the prior consent of the Bundestag and the Bundesrat, which must take the form of a law under Art. 23(1) second sentence of the Basic Law. Where applicable, the same applies with regard to Art. 86(4) TFEU (powers of the European Public Prosecutor’s Office) and Art. 308(3) TFEU (statute of the European Investment Bank).

D.

420

[…]

E.

421

The decision was unanimous as regards its outcome; it was taken with 7:1 votes as regards the reasons.