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| by Alperen Koseoglu |
The decision-making procedures of the EU are based on cooperation of intergovernmental and supranational institutions. The most important point is the balance between those two types of bodies. In the first pillar, decisions are taken by the European Parliament and the Council, the Council or the Commission. The most frequent voting method in the Council is based on a “qualified majority voting”. On the contrary, in the second and the third pillars the system is founded on a general unanimity principle where the role of the European Parliament and the Commission is very limited. (see here)
It could be argued that the Lisbon Treaty changes this situation to a great extent. A new “ordinary legislative procedure” that corresponds to the Nice co-decision is established and the role of the European Parliament and the Commission is strengthened. As noted in our previous post, the qualified majority voting system in the Council is reformed in order to find an agreement quicker and easier, but there is one exception: Common Foreign and Security Policy. In this sphere the general principle of unanimity is upheld. Thus the contradiction majority versus unanimity will still exist.
The competences of supranational bodies, is a decisive factor of decision making system. In the Nice, EU the powers of supranational political institutions, the European Parliament and the Commission, are particularly limited and controlled by intergovernmental bodies with a supreme position of the Council and the European Council. The only supranational organ of the second pillar, the High Representative for CFSP, is not equipped with real influence.
Institutional provisions of the Treaty of Lisbon give the European Parliament new competences resulting from enlargement of co-decision procedure and the Commission is also included in many new decision-making areas. The most important changes relate to intergovernmental institutions that are equipped with supranational elements: the European Council with the President, the Council with the High Representative of the Union for Foreign Affairs and Security Policy.
The President of the European Council is well equipped to ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, besides, the President is granted the external representation of the High Representative of the Union for Foreign Affairs and Security Policy is also being equipped with mandates to conduct the Union's common foreign and security policy.
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It should be noted that the roles and mandates that were granted to the EU institutions / new figures connotes unclear powers and these ambiguities open the path for disputed matters. In our view, the role of the new figures will depend on many factors, positions of member states, political will and personalities. But the new powers that were granted to the EU institutions open the path through comprehensive policy making and together with the “self conferral”; the nation states are now under the risk of losing certain policy areas to the exclusive competence of the EU institutions.
The Decision of the Germany’s Constitutional Court
In Germany, the authorization law of the Lisbon Treaty is taken to the Constitutional Court on the grounds that the law is against the Germany’s Constitution. The decision taken by the Germany’s Constitutional Court could be regarded as the response of the nation state against the growing federalist/constitutional dynamic within the EU.
The Constitutional Court in its decision first refers to the most eminent article of the Lisbon treaty; “no national law or national constitution can annul any rule from the EU. If there is any doubt the Lisbon treaty gives the monopoly of all interpretations of EU law to the ECJ” Then the Constitutional Court echoes the following issues: “the authorization law must provide for prior authorization by the parliament of German positions in any decisions which affects the EU competences.” The Lisbon Treaty in fact regulates the division of competences and leaves very few areas to the nation states. The Court in its decision criticizes this issue and demands prior authorization from the not only the German Parliament but also from all member states parliaments.
Second the Court in its decision argues that “the EU will be a limited cooperation which shares some specific competences”. This provision of the Court’s decision connotes the limits of federalism and the Court implicitly sets forth its reservation that if the policy makers are willing to integrate further under the EU umbrella, then they have to amend German Constitution, because the current provisions of the Constitution enables only a limited level of cooperation. This part of the decision also refers to the constitutions of the other member states, because it would always be possible to find some contradictory provisions in each member state’s constitution that limits the level cooperation in the EU.
This blog believes that the most important part of the Court’s decision is the provision that underlines the importance of sovereignty of Germany, the Court in its decision argues that, “competences handed over the EU will remain as sovereign German policies to be decided by German citizens and German Parliament”. This sentence again underlines the livelihood of the jurisdiction, sovereignty and mandate of the nation state against the EU institutions. If this trend would be disseminated to the other member states, then, every single Constitutional Court in each member state will refer to the competence of the nation state and its sovereignty.
The decision of the Germany’s Constitutional Court is important in many respects, but is worth noting that the Court has opened the path for the other Constitutional Courts to decide on the area of competences and it underlined the limit of the level of cooperation in the EU. The Court referred to the sovereignty and the mandate of the national institutions on the grounds that the future of German citizens should be decided by the direct involvement of the national institutions. The decision taken in a country that has a federalist stance at the policy maker level has also created huge implications and sparked a big debate on the survival of the European nation state.
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