The Lisbon Judgment of the German Constitutional Court: A Court-Ordered Strengthening of the National Legislature in the EU

This article discusses the judgment of the German Constitutional Court on the constitutionality of the Treaty of Lisbon, concentrating on the court's insistence on the prerogatives of the national legislature. The court's insistence on prior national legislative ratification for the application of the simplified treaty revision procedure and of similar de facto amendment procedures, including the flexibility clause, is conservative but understandable from the perspective of German constitutional law. The prescription of prior bicameral ratification for the application of the flexibility clause makes the German government procedurally one of the most tightly controlled in the EU, although this would not be unique, and the effect of such control will depend on the cleavage between the government and the national legislature, especially the German upper chamber. None of the procedures insisted upon by the court are incompatible with EU Treaty law. Whether the new procedures will actually enhance the democratic legitimacy of EU measures in German perception will depend on the degree to which political parties in the national legislature will publicly politicise their stance on the decisions in question, allowing voters to hold them to account. All the court can do is prescribe opportunities where such politicisation may take place.