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The free right of withdrawal is alleged to confirm the continued existence of state sovereignty. The principle of conferral would continue to apply. The use of the flexibility clause would be subject to substantive requirements and procedural safeguarding mechanisms by the Treaty of Lisbon. Measures in the context of the Common Foreign and Security Policy would have no supranational quality even after the abolition of the division between European Union and European Community. The area of freedom, security and justice would not impair the territorial sovereignty of the Member States but would guarantee cooperation between Member States, necessary in an area without internal borders.

Neither the Charter of Fundamental Rights nor the primacy of Community law are alleged to result in the establishment of a European state. A stronger decision-making power of the state executive would go along with the elaboration of the European Union as an association of sovereign states Staatenverbund.

Besides, the Federal Constitutional Court has deemed the current institutional system of the European Union compatible with the Basic Law, and the Treaty of Lisbon would result in a strengthening of the national parliaments. The Treaty of Lisbon is said to strengthen the democratic legitimation of the European Union in particular by enhancing the position of the European Parliament and of the national parliaments. The treaty is said not to result in a loss of statehood of the Federal Republic of Germany. The delimitation of competences would be improved; additional competences are transferred only to a limited extent.

The safeguarding of state sovereignty is said to be clearly expressed in the explicit recognition of the respect of national identity pursuant to Article 4. The German Bundestag does not make a statement on the written application amended by the applicant re I. In so far as the applicant re I. Moreover, the applicant re I.

The Federal Constitutional Court has explicitly rejected the entitlement of an individual Member of the German Bundestag to act on behalf of the German Bundestag in proceedings. Finally, the applicant is said not to exercise the rights of the body of which he is a part but to challenge a decision of that very body. This would result in inter se proceedings, inadmissible in constitutional legal proceedings. The applicant is said not to be entitled to make such application because it did not plausibly substantiate that its rights as a parliamentary group had been violated.

It is said not to have a right to require the Bundestag to respect the boundaries of integration nor would it have a general right to require the Basic Law to be respected. Nor may the parliamentary group, acting on behalf of the Bundestag, claim rights of the Bundestag against the Bundestag.

In addition, it is said to lack a need for legal protection as its application amounts in fact to one applying for an abstract review of statutes; whereas it is said not to be entitled to be a party to such proceedings. The objective constitutionality of the challenged Acts cannot be examined. As regards the unfoundedness of the Organstreit proceedings re I. He is alleged not to be affected as regards his legal position, granted to him under Article Therefore, at most, an abstract review of constitutionality would be permissible, which the applicant, however, is said not to be entitled to institute.

Furthermore, the corresponding provisions of the Rules of Procedure of the German Bundestag are said to restrict the status right of the Member of Parliament in a constitutionally admissible manner.

A suitable respondent is said not to exist. In the context of Organstreit proceedings, the mere challenge of an Act is said to be impermissible. Moreover, it is said not to be apparent how the status rights of the applicant parliamentary group were violated. Nor may the applicant, acting on behalf of the Bundestag, claim rights of the Bundestag against the Bundestag. As the applicant does not achieve the quorum required under Article In addition, it states that in so far as the Act Approving the Treaty of Lisbon is challenged, the Treaty of Lisbon contains only a few new elements in the area of the common security and defence policy.

The constitutional complaints re III. The application made in the Organstreit proceedings re II. In other respects, the constitutional complaints and the applications made in Organstreit proceedings are inadmissible. The complainants are entitled to lodge a constitutional complaint. This also applies to the complainants re III. The Act Approving the Treaty of Lisbon and the accompanying laws thereto can, as measures of German public authority, be a suitable subject of a complaint in constitutional complaint proceedings.


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This applies regardless of the fact that these Acts have not yet entered into force. This applies mutatis mutandis to the accompanying laws, whose entry into force is linked to the entry into force of the Treaty of Lisbon. Article 2 of the Amending Act makes reference to the entry into force of the Treaty of Lisbon, Article 3 of the Extending Act makes reference to the entry into force of the Amending Act. The complainants meet this requirement to varying degrees. The individualised safeguard set out in the substance of this Article ensures that the citizen is entitled to the right to elect the German Bundestag and that in the election, the constitutional principles of electoral law will be respected.

The election not only legitimises state authority at the federal level pursuant to Article For those entitled to vote can choose between competing candidates and parties, which stand for election with different political proposals and projects. The Basic Law has declared this legitimising connection between the person entitled to vote and state authority inviolable by Article The interrelation between Article As a consequence of the transfer of sovereign powers pursuant to Article Against the background of the principle of democracy, which is made a possible subject of a challenge by Article Because the Federal Republic of Germany may, pursuant to Article Article of the Basic Law confirms the pre-constitutional right to give oneself a constitution from which constitutional authority emanates and by which it is bound.

Article of the Basic Law sets out, in addition to the substantive requirements laid down in Article It is the constituent authority alone, and not the constitutional authority emanating from the constitution, which is entitled to release the state constituted by the Basic Law. For this does not rule out that a violation of Article of the Basic Law in conjunction with the fundamental rights, and rights equivalent to fundamental rights, listed in Article The submissions of the complainants re III. In this respect, the constitutional complaints are inadmissible. He does not demonstrate sufficiently strongly that the prior right postulated by him to refrain from any action that would bring about a resistance situation, which could be derived from Article Accordingly, a violation of Article The fact that Article The subsidiary character of this right remains unaffected by its being designed as a right that is, also procedurally, equal to a fundamental right.

A distinction must be made between European and national levels of fundamental rights. The complainants do not even make submissions that sufficiently differentiate between levels of fundamental rights. The general curtailment of human dignity alleged by them does not follow automatically from the Charter of Fundamental Rights or from the case law of the Court of Justice of the European Communities cited by them. It will be for future proceedings to clarify whether and to what extent a claim of a decline of the protection of fundamental rights by changes in primary law may be admissible at all on the basis of Article 1.

The entitlement to lodge a constitutional complaint under Article In this respect, the complainants explain sufficiently clearly that the Act Approving the Treaty of Lisbon and the accompanying laws form a unit for the purposes of constitutional law procedure. The challenge, which means in essence that the accompanying laws do not create sufficient conditions for the exercise of the rights of participation at national level granted to the German Bundestag and the Bundesrat by the Treaty of Lisbon, concerns the democratic content of Article The application made in the Organstreit proceedings re I.

October , is inadmissible. The adoption of the Act Approving the Treaty of Lisbon and the decisions on the accompanying laws may, as the applicant re I. As a citizen of the Federal Republic of Germany, the applicant re I. The constitutional complaint permits the assertion of all rights that may be derived from Article Besides that contained in the constitutional complaint, no independent status-specific interest of legal protection exists for the application. As parts of the Bundestag as a body, only the permanent components of the German Bundestag are entitled to assert rights of the Bundestag.

The applicant re II. Because such a decision need not be adopted in accordance with the respective constitutional requirements of the Member States, the question arises whether the representative of the German government in the Council is obliged to obtain the approval of the German Bundestag before voting in the Council takes place. The principle of democracy guaranteed in Articles In other respects, the constitutional complaints lodged and the application made in Organstreit proceedings by the applicant re II. The standard of review of the Act Approving the Treaty of Lisbon is determined by the right to vote as a right that is equal to a fundamental right Article The right to vote establishes a right to democratic self-determination, to free and equal participation in the state authority exercised in Germany and to compliance with the principle of democracy including the respect of the constituent power of the people.

In the present combination of procedural circumstances, the review of a violation of the right to vote also comprises encroachments on the principles which are codified in Article In general, free and equal elections of the Members of the German Bundestag the people of the Federation directly exercises its political will. As a general rule, it governs itself via a majority Article From within the assembly, the Chancellor - and thus the Federal Government - is appointed; this is where the Chancellor is accountable.

At the federal level of the state founded on the Basic Law as its constitution, the election of the Members of the German Bundestag is the source of state authority - which time and again newly emanates from the people in periodically repeated elections Article In the state system that is shaped by the Basic Law, the election of the Members of the German Bundestag is of major importance. Without the free and equal election of the body that has a decisive influence on the government and the legislation of the Federation, the constitutive principle of personal freedom remains incomplete.

Invoking the right to vote, the citizen can therefore claim the violation of democratic principles by means of a constitutional complaint Article The right to equal participation in democratic self-determination democratic right of participation , to which every citizen is entitled, can also be violated by the organisation of state authority being changed in such a way that the will of the people can no longer effectively be shaped within the meaning of Article The right to free and equal participation in public authority is enshrined in human dignity Article 1.

It forms part of the principles of German constitutional law established as inviolable by Article The order constituted by the Basic Law rests on the self-esteem and dignity of the individual in free determination. Consequently, citizens are not subject to an inescapable political power which they are fundamentally incapable of freely determining, with equal regard to persons and subject-matter. It acts in the sphere of public, free opinion-forming and in the organised competition between political forces of accountable government and parliamentary opposition.

The exercise of public authority is subject to the majority principle of regularly forming accountable government and an unhindered opposition, which has an opportunity to come into power. In particular, in electing the representative assembly of the people, or in the election of highest-ranking offices at government level, a generalised will of the majority with regard to persons or subjects must have an opportunity to express itself and decisions on political direction resulting from the elections must be possible. According to German electoral law, constitutionally required representative parliamentary rule is achieved by reflecting the will of the electorate as proportionally as possible in the allocation of seats.

A majority decision in Parliament represents at the same time the majority decision of the people. Every Member of Parliament is a representative of all the people and thus a member of an assembly of equals Article The Basic Law requires that every citizen be free and equal within the legal sense i.

The equality of the citizens entitled to vote must then continue to apply at further levels of the development of democratic opinion-forming, in particular as regards the status of a Member of Parliament. The status of a Member of Parliament therefore includes the right to equal participation in the process of parliamentary opinion-forming as guaranteed in Article However, all systems of representative democracy have this in common: The decision on political direction which is taken by the majority of voters is to be reflected in Parliament and in the government; the losing part remains visible as a political alternative and active in the sphere of free opinion-forming as well as in formal decision-making procedures, as an opposition that will, in subsequent elections, have an opportunity to become the majority.

The constituent power of the Germans which gave itself the Basic Law wanted to set an insurmountable boundary to any future political development. Amendments to the Basic Law affecting the principles laid down in Article 1 and Article 20 of the Basic Law shall be inadmissible Article The so-called eternity guarantee even prevents a constitution-amending legislature from disposing of the identity of the free constitutional order.

The Basic Law thus not only presumes sovereign statehood for Germany but guarantees it. Within the order of the Basic Law, the structural principles of the state laid down in Article 20 of the Basic Law, i. In this respect, the constituent power has not granted the representatives and bodies of the people a mandate to dispose of the identity of the constitution. No constitutional body has been granted the power to amend the constitutional principles which are essential pursuant to Article The Federal Constitutional Court monitors this.

Through what is known as the eternity guarantee, the Basic Law reacts on the one hand to the historical experience of a creeping or abrupt erosion of the free substance of a democratic fundamental order. However, it makes clear on the other hand that the Constitution of the Germans, in accordance with the international development which has taken place in particular since the existence of the United Nations, has a universal foundation which cannot be amended by positive law.

The elaboration of the principle of democracy by the Basic Law allows for the objective of integrating Germany into an international and European peace order. The new shape of political rule thereby made possible is not schematically subject to the requirements of a constitutional state applicable at national level and may therefore not be measured automatically against the concrete manifestations of the principle of democracy in a Contracting State or Member State.

Albert Guerard Professor of Literature and Professor of Comparative Literature, Emeritus

The empowerment to embark on European integration permits a different shaping of political opinion-forming than the one determined by the Basic Law for the German constitutional order. This applies as far as the limit of the inviolable constitutional identity Article Neither pari passu integration into the European Union nor integration into peacekeeping systems such as the United Nations is tantamount to submission to alien powers.

Instead, it is a voluntary, mutual pari passu commitment which secures peace and strengthens the possibilities of shaping policy by joint coordinated action. The Basic Law does not protect individual freedom, as the self-determination of the individual, with the objective of promoting uncommitted high-handedness and the ruthless enforcement of interests. The same applies to the sovereign right of self-determination of the political community.

Democratic constitutional states can only gain a formative influence on an increasingly mobile society, which is increasingly linked across borders, through sensible cooperation which takes account of their own interest as well as of their common interest. Only those who commit themselves because they realise the need for a peaceful balancing of interests and the possibilities provided by joint concepts gain the measure of possibilities of action required for any future ability to responsibly shape the conditions for a free society.

The Basic Law takes account of this with its openness to European integration and to commitments under international law. This willingness is lent concrete shape by the empowerments to integrate into the European Union Article The Basic Law calls for the participation of Germany in international organisations, an order of mutual peaceful balancing of interests established between the states and organised co-existence in Europe.

It breaks with all forms of political Machiavellianism and with a rigid concept of sovereignty which until the beginning of the 20th century regarded the right to wage war - even a war of aggression - as a right due to a sovereign state as a matter of course see Starck, Der demokratische Verfassungsstaat, , pp. Bernhardt, Encyclopedia of Public International Law, vol.

This means that sovereign statehood stands for a pacified area and the order guaranteed therein on the basis of individual freedom and collective self-determination. The state is neither a myth nor an end in itself but the historically grown and globally recognised form of organisation of a viable political community. The Basic Law calls for European integration and an international peaceful order. Therefore, not only the principle of openness towards international law, but also the principle of openness towards European law Europarechtsfreundlichkeit applies.

In its Article 23, the Basic Law grants powers to participate in a supranational system of cooperation that promotes peace. This does not include the obligation to realise democratic self-determination on the supranational level in the exact forms prescribed by the Basic Law for the Federation and, via Article Due to the irrevocable transfer of sovereignty to a new subject of legitimation that goes with it, this step is reserved to the directly declared will of the German people alone.

The minimum standard protected by Article The empowerment to exercise supranational powers, however, comes from the Member States of such an institution. They therefore permanently remain the masters of the Treaties. In a functional sense, the source of Community authority, and of the European constitution that constitutes it, are the peoples of Europe with democratic constitutions in their states. It establishes a supranational autonomy which undoubtedly makes considerable inroads into everyday political life but is always limited factually.

Here, autonomy can only be understood - as is usual regarding the law of self-government - as an autonomy to rule which is independent but derived, i. In contrast, sovereignty under international law and public law requires independence from an external will precisely for its constitutional foundations see Carlo Schmid, Generalbericht in der Zweiten Sitzung des Plenums des Parlamentarischen Rates am 8. It is not decisive here whether an international organisation has legal personality, i. What is decisive is how the fundamental legal relationship between the international organisation and the Member States and Contracting States which have created it and have vested it with legal personality is elaborated.

Even a far-reaching process of independence of political rule for the European Union brought about by granting it steadily increased competences and by gradually overcoming existing unanimity requirements or so far prevailing rules of state equality can, from the perspective of German constitutional law, only occur as a result of the freedom of action of the self-determined people.

According to the constitution, such integrational steps must be factually limited by the act of transfer and must, in principle, be revocable. For this reason, withdrawal from the European union of integration Integrationsverband may, regardless of a commitment for an unlimited period under an agreement, not be prevented by other Member States or by the autonomous authority of the Union.

This is not a secession from a state union Staatsverband , which is problematical under international law Tomuschat, Secession and Self-Determination, in: Kohen, Secession - International Law Perspectives, , pp. In this respect, the principle of conferral under European law and the duty, under European law, to respect identity, are the expression of the foundation of Union authority in the constitutional law of the Member States.

Within the boundaries of its competences, the Federal Constitutional Court must review, where necessary, whether these principles are adhered to. In so far as the Member States elaborate treaty law in such a way as to allow treaty amendment without a ratification procedure solely or mainly by the institutions of the Union, albeit under the requirement of unanimity, whilst preserving the principle of conferral, a special responsibility is incumbent on the legislative bodies, in addition to the Federal Government, within the context of participation which in Germany, has to comply internally with the requirements under Article An Act that grants powers of integration, like the Act Approving the Treaty of Lisbon, can therefore, despite the principle of conferral, only outline a programme in whose boundaries a political development occurs which cannot be determined in advance in every respect.

When striving for integration one must expect the institutions of the Union to form independent opinions. Therefore a tendency towards maintaining the acquis communautaire and to effectively interpreting powers along the lines of the US doctrine of implied powers see also International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April , ICJ Reports , p. This is part of the mandate of integration called for by the Basic Law. If legislative or administrative competences are only transferred in an unspecified manner or with a view to further dynamic development, or if the institutions are permitted to re-define expansively, fill lacunae or factually extend competences, they risk transgressing the predetermined integration programme and acting beyond the powers granted to them.

They are moving on a road at the end of which there is the power of disposition of their foundations laid down in the treaties, i. There is a risk of transgression of the constitutive principle of conferral and of the conceptual responsibility for integration incumbent upon Member States if institutions of the European Union can decide without restriction, without any outside control, however restrained and exceptional, how treaty law is to be interpreted. For borderline cases of what is still constitutionally admissible, the German legislature must, where necessary, take precautions in its legislation accompanying approval to ensure that the responsibility for integration of the legislative bodies can sufficiently develop.

The Federal Constitutional Court has already opened up the way of the ultra vires review for this, which applies where Community and Union institutions transgress the boundaries of their competences. The identity review makes it possible to examine whether due to the action of European institutions, the principles under Article 1 and Article 20 of the Basic Law, declared inviolable in Article This ensures that the primacy of application of Union law only applies by virtue and in the context of the constitutional empowerment that continues in effect.

To preserve the viability of the legal order of the Community, taking into account the legal concept expressed in Article Availing oneself to types of proceedings that already exist, i. Also conceivable, however, is the creation by the legislature of an additional type of proceedings before the Federal Constitutional Court that is especially tailored to ultra vires review and identity review to safeguard the obligation of German bodies not to apply in individual cases in Germany legal instruments of the European Union that transgress competences or that violate constitutional identity.

The ratification of international treaties which regulate the political relations of the Federation Article To respect the responsibility for integration and to protect the constitutional structure, this constitutional requirement of the specific enactment of a statute is to be interpreted in such a way that it covers any amendment of the texts that form the basis of European primary law.

The legislative bodies of the Federation thus exercise their political responsibility, which is comparable to the ratification procedure, also in case of simplified revision procedures or lacunae-filling in the treaties, in the case of competence changes whose bases already exist but which require concretisation by further legal instruments, and in case of a change in provisions that concern decision-making procedures. Thus, legal protection that corresponds to the situation of ratification is ensured.

The shape of the European Union must comply with democratic principles as regards the nature and the extent of the transfer of sovereign powers as well as with regard to the organisational and procedural elaboration of the Union authority acting autonomously Article European integration may neither result in the system of democratic rule in Germany being undermined a nor may the supranational public authority as such fail to comply with fundamental democratic requirements b.

In the transfer of sovereign powers and the elaboration of the European decision-making procedures, it is aimed at ensuring that, seen overall, the political system of the Federal Republic of Germany as well as that of the European Union comply with democratic principles within the meaning of Article An increased cohesion of smaller or larger units and better opportunities for a peaceful balancing of interests between regions and states grow from them.

Federal or supranational intertwining creates possibilities of action which otherwise would encounter practical or territorial limits, and facilitates the peaceful balancing of interests. At the same time, it makes it more difficult to create a will of the majority that can be asserted and that directly derives from the people Article The assignment of decisions to specific responsible actors becomes less transparent, with the result that citizens have difficulty in having their vote guided by tangible contexts of responsibility.

The principle of democracy therefore sets content-related limits to the transfer of sovereign powers, limits which do not already result from the inalienability of the constituent power and of state sovereignty. The participation of Germany in the development of the European Union, which is permitted by Article This is rooted in the European idea of peace and unification especially when dealing with the coordination of cross-border aspects of life and when guaranteeing a single economic area and area of justice in which citizens of the Union can freely develop Article 3.

Essential areas of democratic formative action comprise, inter alia, citizenship, the civil and the military monopoly on the use of force, revenue and expenditure including external financing and all elements of encroachment that are decisive for the realisation of fundamental rights, above all in major encroachments on fundamental rights such as deprivation of liberty in the administration of criminal law or placement in an institution. These important areas also include cultural issues such as the disposition of language, the shaping of circumstances concerning the family and education, the ordering of the freedom of opinion, press and of association and the dealing with the profession of faith or ideology.

Democracy first and foremost lives on, and in, a viable public opinion that concentrates on central acts of determination of political direction and the periodic allocation of highest-ranking political offices in the competition of government and opposition. Only this public opinion shows the alternatives for elections and other votes and continually calls them to mind also in decisions relating to individual issues in order that they may remain continuously present and effective in the political opinion-formation of the people via the parties, which are open to participation for all citizens, and in the public information area.

To this extent, Article 38 and Article The principle of democracy as well as the principle of subsidiarity, which is also structurally required by Article In these areas, it is particularly necessary to draw the limit where the coordination of cross-border situations is factually required. The penalisation of social behaviour can, however, only partially be normatively derived from values and moral premises that are shared Europe-wide.

Except in case of defence, the deployment of the Bundeswehr abroad is only permitted in systems of mutual collective security Article The deployment of armed forces is of paramount importance for the individual legal standing of soldiers and of others affected by military action and involves danger of far-reaching implications. The constitutive requirement of parliamentary approval for the deployment of the Bundeswehr abroad is not open to integration. This, however, does not raise an insurmountable obstacle under constitutional law to a technical integration of a European deployment of armed forces via joint general staffs, nor to the formation of joint forces or to agreement on and coordination of joint European weapons procurement.

Only the decision on any specific deployment depends on the constitutive approval of the German Bundestag.


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  4. The same applies correspondingly to essential state expenditure. In this area, the responsibility concerning social policy in particular is subject to the democratic decision-making process, which citizens want to influence through free and equal elections. Budget sovereignty is where political decisions are planned to combine economic burdens with benefits granted by the state. Therefore the parliamentary debate on the budget, including the extent of public debt, is regarded as a general debate on policy. Not every European or international obligation that has an effect on the budget endangers the viability of the Bundestag as the legislature responsible for approving the budget.

    The openness to legal and social order and to European integration which the Basic Law calls for, include an adaptation to parameters laid down and commitments made, which the legislature responsible for approving the budget must include in its own planning as factors which it cannot itself directly influence. What is decisive, however, is that the overall responsibility, with sufficient political discretion regarding revenue and expenditure, can still rest with the German Bundestag.

    The state must carry out this obligation on the basis of a broad discretion; for this reason, concrete constitutional obligations to act have only been derived from this principle in very few cases. The principle of the social state sets the state a task, but it does not say anything about the means with which the task is to be accomplished in individual cases. It is true that pursuant to Article Accordingly the Basic Law not only defensively safeguards social tasks for the German state union against supranational demands but aims at committing the European public authority to social responsibility in the spectrum of tasks transferred to it see Heinig, Der Sozialstaat im Dienst der Freiheit, , pp.

    The institutions of the European Union, however, are subject to the principle that the social state necessarily requires political and legal concretisation in order for it to have an effect.

    Hans Ulrich Gumbrecht

    This corresponds to the legally and factually limited possibilities of the European Union to shape the structures of a social state. Those activities of the European Union that may be already observed in these areas intervene in society on a level that is the primary responsibility of the Member States and their component parts.

    Salut Salon "Wettstreit zu viert"

    The manner in which curricula and the content of education and, for example, the structure of a multi-track school system are organised, are fundamental policy decisions closely connected to the cultural roots and values of every state. Like the law on family relations and decisions on issues of language and the integration of the transcendental into public life, the manner in which school and education are organised particularly affects established rules and values rooted in specific historical traditions and experience. Here, democratic self-determination requires that a political community bound by such traditions and convictions remains the subject of democratic legitimation.

    The development of the European Union in respect of a transfer of sovereign powers, institutions and decision-making procedures must correspond to democratic principles Article The specific requirements placed on the democratic principles depend on the extent of the sovereign powers that have been transferred and on the degree of independence achieved by European decision-making procedures. Increased integration may be unconstitutional if the level of democratic legitimation is not commensurate with the extent and the importance of supranational power. This level of legitimation could no longer be prescribed by national constitutional orders.

    If an imbalance between type and extent of the sovereign powers exercised and the degree of democratic legitimation arises in the course of the development of the European integration, it is for the Federal Republic of Germany because of its responsibility for integration, to endeavour to effect a change, and in the worst case, even to refuse further participation in the European Union. The bodies must be created by the majority decision of the citizens, who can periodically influence the fundamental direction of policy in respect of persons and subjects.

    A free public opinion and a political opposition must be able to critically observe the major elements of the decision-making process and ascribe it correctly to those responsible, i. The direct will of the people may be expressed by electing a parliamentary representation of the people or by electing the highest-ranking representative of the executive President as well as by majority decisions in referenda about factual issues. Presidential systems like the ones in the United States or in France are dualistically constituted representative democracies, while the United Kingdom or Germany have systems of monistic parliamentary representation.

    In Switzerland, on the other hand, parliamentary monism is complemented by strong plebiscitary elements, which also fulfil part of the functions of a parliamentary opposition see Loewenstein, Verfassungslehre, 2nd ed. This core content may be complemented by plebiscitary voting on factual issues; such voting could be made possible also in Germany by an amendment of the Basic Law. In a democracy, the decision of the people is the focal point of the formation and retention of political power: Every democratic government knows the fear of losing power by being voted out of office.

    According to the Federal Constitutional Court, this battle is about the will of the actual majority of the people ascertained in carefully regulated procedures and preceded by a free discussion. Because and in so far as the European Union itself only exercises derived public authority, it need not fully comply with the requirements. At European level, the Council is not a second chamber as it would be in a federal state but the representative body of masters of the Treaties and accordingly, it is not constituted by proportional representation but according to the idea of the equality of states.

    As a representative body of the peoples in a supranational community, characterised as such by a limited willingness to unite, it cannot, and need not, as regards its composition, comply with the requirements that arise at state level from the equal political right to vote of all citizens. The Commission also as a supranational, special body, also the Commission need not extensively fulfil the conditions of a government that is fully accountable either to Parliament or to the majority decision of the electorate because the Commission itself is not bound by the will of the electorate in a comparable manner.

    Instead, the European Union is free to look for its own ways of reducing the democratic deficit by means of additional, novel forms of transparent or participative political decision-making procedures. It is true that the merely deliberative participation of the citizens and of their societal organisations in the political rule - their direct involvement in the deliberations of the institutions with the power to take binding political decisions - cannot replace the legitimising connection based on elections and other votes.

    Such elements of participative democracy can, however, complement the legitimation of European public authority. This encompasses in particular forms of legitimation to which civic commitment can contribute in a more direct, more specialised and more profoundly issue-related manner, for example by providing the citizens of the Union and the societally relevant associations Article Such forms of decentralised participation based on the division of labour and has a potential to increasing legitimacy for their part contribute to making the primary representative and democratic connection of legitimation more effective.

    There are also no constitutional objections to the Act Amending the Basic Law Articles 23, 45 and 93 2. The Act Approving 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 Article Through the election of the German contingent of Members of the European Parliament the right to vote of the citizens of the Federal Republic of Germany is supplemented by the possibility of participation in the system of European institutions, thus providing for a sufficient level of legitimation in the system of conferred powers.

    The Treaty of Lisbon neither transfers constituent power, which cannot be affected by the constitutional bodies, nor does it abandon state sovereignty of the Federal Republic of Germany b. The German Bundestag still retains sufficiently onerous responsibilities and competences of its own c. The Treaty of Lisbon also decided against the concept of a European federal Constitution in which the European Parliament would become the focus as the representative body of a new federal people constituted by it.

    A will aiming at founding a state cannot be ascertained.

    Legislationline

    Measured against the standards of free and equal elections and the requirement of a viable majority rule, the European Union also does not correspond to the federal level in a federal state. Consequently, the Treaty of Lisbon does not alter the fact that the Bundestag as the representative body of the German people is the focal point of an intertwined democratic system. The claim made in the applications and the constitutional complaint which is the focal point of the challenges, namely that the Treaty of Lisbon moves the subject of democratic legitimation, is incorrect.

    Even as an association with its own legal personality, the European Union remains the creation of sovereign democratic states. In the present state of integration, it is therefore not required to democratically develop the system of the European institutions in analogy to that of a state. In addition, connected with this is the lack of a system of organisation of political rule in which a European majority will carries the formation of the government sustained by free and equal electoral decisions and thus genuine competition, transparent for citizens, between government and opposition can come about.

    Even in the new wording of Article This is reflected in the fact that it is designed as a representation of peoples in the respective national contingents of Members, not as a representation of Union citizens in unity without differentiation, according to the principle of electoral equality. If a narrow decision between opposing political groupings is taken in the European Parliament, there is no guarantee of the majority of votes cast also represents a majority of Union citizens. Therefore the formation, from within Parliament, of an independent government vested with the competences that are usual in states would meet with fundamental objections.

    There would be a possibility that a minority of citizens with numbers based on the existing ratio of representation by a majority of Members of the European Parliament would thus govern against the political will of a majority opposition of Union citizens which would not be reflected as a majority in numbers.

    It is true that the principle of electoral equality, only if applied on the strictest conditions of proportional representation, will secure the most accurate reflection of the will of the people. However, even in majority voting systems, there is in any case a sufficient guarantee of electoral equality for votes in terms of the value counted and the chance of success, whereas this is not the case if any appointment of seats according to numbers is established. It belongs to the legal principles binding on all European states. It is true that the Contracting States have a wide margin of appreciation in shaping the details of their electoral law, including taking into account of national particularities and historical development.

    The European Court of Human Rights explicitly includes the value of votes counted into this equal treatment, whilst allowing exceptions for equal contribution towards success and for equal chances of victory for the candidates European Court of Human Rights, judgment of 2 March , Application no.

    The degressively proportional composition prescribed for the European Parliament by Article According to the primary law provisions, which begin to flesh out the principle of degressive proportionality, the maximum number of Members of the European Parliament shall be plus the President ; no Member State shall be allocated more than 96 seats and none shall be allocated less than six seats Article As a result the weight of the vote of a citizen from a Member State with a small population may be about twelve times the weight of the vote of a citizen from a Member State with a large population.

    It was approved by the Intergovernmental Conference see Declaration no. The decision can only be adopted by the European Council after the entry into force of the Treaty of Lisbon. According to the draft decision, the principle of degressive proportionality is to be applied in such a way that the minimum and maximum numbers of contingents of mandates must be fully utilised, that the number of seats allotted to a Member State is roughly proportionate to the size of its population and that the number of inhabitants represented by a mandate is higher in more populous Member States Article 1 of the draft decision.

    The Federal Republic of Germany is allotted 96 seats Article 2 of the draft decision.

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    According to the draft decision, a Member of the European Parliament elected in France would represent approximately , citizens of the Union and thus as many as a Member elected in Germany, who represents approximately , as well. In contrast, a Member of the European Parliament elected in Luxembourg would, however, only represent approximately 83, Luxembourg citizens of the Union, i. They are, however, not accepted in the representative body of the people because otherwise that could not represent the people in a way that does justice to equality based on the principle of personal freedom.

    The arrangement of the right to vote in the European Union need, however, not be a contradiction to Article Thus, this arrangement of representation of the Member States only indirectly represents the distribution of power in the Member States. This is a cogent reason for the fact that it would be perceived as insufficient if for example a small Member State were represented in the European Parliament by only one Member of Parliament if the principle of electoral equality were observed more strictly.

    The states affected argue that otherwise it would no longer possible to reflect national majority situations in a representative manner at European level. This consideration alone shows that it is not the European people that is represented within the meaning of Article For political projects such as the economic union to be able to succeed, it has been a central idea of the European union of integration since its foundation to prohibit or restrict discrimination on grounds of nationality Article 12, Article 18 ECT; Article 18, Article 21 TFEU.

    The concept of the internal market is based on the conviction that it does not make any difference from which Member State goods or services originate, where workers or entrepreneurs come from and what the origin of investment is. However, precisely this criterion of nationality is intended to be decisive pursuant to Article With the personal composition of the European Council, of the Council, the Commission and the Court of Justice of the European Union, the principle of the equality of states remains linked to national rights of determination, rights which are, in principle, equal.

    Even for a European Parliament elected having due account to equality, this structure would constitute a considerable obstacle for the expression of the representative will of the parliamentary majority with regard to persons or subject- areas. The functioning of the European Union continues to be characterised by the influence of the negotiating governments and the subject-related administrative and formative competence of the Commission even if on the whole the rights of participation of the European Parliament have been strengthened. Within this system, the influence of Parliament has been consistently further developed granting it the right of veto in central areas of legislation.

    The ordinary legislative procedure in the Treaty of Lisbon regulates what is already decisive in fact under the currently applicable law in many areas: The Treaty of Lisbon strengthens these elements of participative democracy aimed at procedural participation. The so-called double qualified majority is intended to avoid the majority of inhabitants constituting the majority in the Council. The present system of weighting of votes, which assigns to the Member States a number of votes according to their size, is intended to disappear after a transitional period.

    The new corrective factor of the majority of the population, however, adds another element of calculation which consists of the peoples of the Member States of the Union, while making reference not to the citizens of the Union as the subjects of political rule but to the inhabitants of the Member States as the expression of the strength of representation of the representative of in the Council the respective Member State. In future, a numerical majority of the people living in the European Union is intended to support a decision of the Council.

    Admittedly, this weighting, which depends on the number of inhabitants, counteracts excessive federalisation, without, however, complying with the democratic precept of electoral equality. The status of national parliaments is considerably curtailed by the reduction of decisions requiring unanimity and the supranationalisation of police and judicial cooperation in criminal matters. As agreed in the oral hearing, compensation, provided for by the treaty by the procedural strengthening of subsidiarity shifts existing political rights of self-determination to procedural possibilities of intervention and legally assertable claims to participation.

    Nevertheless, they are intended to, and indeed can, ultimately increase the level of legitimation all the same under the conditions of an association of sovereign states Staatenverbund with restricted tasks. If such descriptions and calls are, however, converted into normative statements, which is partly done by the Treaty of Lisbon, without this being connected with an structuring of the institutions that takes due account of equality, they are not suited to introduce a fundamentally new model in terms of the law.

    It also contains contradictions because with the treaty, the Member States follow the construction model for a federal state without being able to create the democratic basis for this under the treaties in the form of the equal election of an appropriate representation of the people and of a parliamentary European government that is based on the legitimising power of the people of the Union alone.

    It is not apparent how this process of political independence could be promoted without it directly originating from an election by the demos in which due account is taken of equality, an election which includes the possibility of being voted out of office and thereby becomes politically effective. If the shift of the focus of political action towards the Commission were to continue as it is intended in conceptual proposals for the future of the European Union, and if the President of the Commission were elected legally and factually by the European Parliament alone see Article As regards the legal situation according to the Treaty of Lisbon, this consideration confirms that without democratic origins in the Member States, the action of the European Union lacks a sufficient basis of legitimation.

    Especially after the failure of the project of a Constitution for Europe, the Treaty of Lisbon has shown sufficiently clearly that this principle remains valid. The Member States remain the masters of the Treaties. In spite of a further extension of competences, the principle of conferral is retained.

    The provisions of the treaty can be interpreted in such a way that the constitutional and political identity of the fully democratically organised Member States is safeguarded, as well as their responsibility for the fundamental direction and elaboration of Union policy. After the entry into force of the Treaty of Lisbon, the Federal Republic of Germany will also remain a sovereign state and thus a subject of international law.

    The substance of German state authority, including the constituent power, is protected aa , the German state territory remains assigned only to the Federal Republic of Germany bb , there are no doubts concerning the continued existence of the German state people cc. The new provisions on treaty amendments under primary law are not contrary to this 2. The European Union is competent for an issue only in so far as the Member States have conferred such competence on it.

    Accordingly, the Member States are the constituted primary political area of their respective polities, the European Union has secondary, i. The Treaty of Lisbon explicitly confirms the current principle of conferral. However, these derogations from the systematising fundamental approach do not affect the principle of conferral, and their nature and extent also does not call the objective of clear delimitation of competences into question. These principles are confirmed, and partly rendered more precise as regards their content, by the Treaty of Lisbon.

    This is done by involving the national parliaments through the so-called early warning system Article 12 lit b Lisbon TEU, Articles 4 et seq. A Conference composed of representatives of the Member States convened by the President of the European Council is empowered to adopt treaty amendments. These amendments, however, only enter into force after being ratified by all Member States in accordance with their respective constitutional requirements Article The Treaty of Lisbon makes it clear that these amendments may serve either to increase or to reduce the competences conferred on the Union in the treaties Article The Convention procedure joins the amendment procedures under international law, which focus on the Member States, and thus takes due account of the institutional particularities of the European Union.

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