“We’re in Charge”
And who else should be able to censure? With this unanimous verdict, Karlsruhe makes itself relevant again. To be sure, the judges already reserved the final word for themselves (especially in relation to the European Court of Justice) sixteen years ago in the Maastricht decision – but that remained theory. Now things are getting serious: the decision all but begs for implementation.
However, it is a Karlsruhe illusion to believe that final oversight by the Federal Constitutional Court will limit itself to a few marginal cases. The cases are already waiting or will certainly be brought before the court: data retention, age discrimination, abortion, assisted suicide, torture to procure life-saving information. Here, there will be a lot of talk about “obvious” overstepping of competencies by Brussels. And there are likely to be many complaints about violations of human dignity – something that is non-negotiable according to the German conception. No matter how often Karlsruhe might emphasize its own pro-Europe attitude – the message is: we’re in charge.
Slept through Opportunities in European Policy
The decision will not go unchallenged. Don’t the constitutional judges have a conception of state and sovereignty that is too static, old-fashioned, and shaped by none other than Carl Schmitt*? One can also read something else into the Basic Law. But even the most ardent supporters of European integration cannot gloss over the fundamental conflict between the supra-national union of states and its members: a state-like entity with persistent democratic shortcomings is behaving like a state towards its members and subjects.
Now and then someone must speak out against this. It is anything but a coincidence that this dissent is coming from Karlsruhe: its legal decisions attract notice in the old democracies of the West and in the Eastern EU states that were subjugated until recently. And not least, the overwhelmed representatives of the German people are yearning for legal directives. It speaks for itself that this decision came about largely at the petition of a CSU Bundestag representative and the Left Party. The great Grand Coalition in the middle seems to have been asleep where European policy is concerned. That’s why this wake-up call is so loud.
* Carl Schmitt was a conservative German legal theorist who was critical of parliamentary democracy and supportive of strong executive power. He was suspicious of liberal cosmopolitanism, emphasized the importance of distinguishing friend from enemy in politics, and stressed the necessity of sovereign authority. His legacy was tarnished by his support for National Socialism.
Source: Reinhard Müller, “Weckruf aus Karlsruhe” [“Wake-up Call from Karlsruhe”], FAZ.NET, June 30, 2009.
Translation: Thomas Dunlap
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