Bundesverfassungsgericht Creates a new Hurdle for the Lisbon Treaty

On June 30, 2009 German Federal Constitutional Court passed its judgment on constitutionality of ratification of the Lisbon Treaty. The key part of the decision is the following:

4. a) The Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters (Bundestag document 16/8489) infringes Article 38.1 in conjunction with Article 23.1 of the Basic Law insofar as rights of participation of the German Bundestag and the Bundesrat have not been elaborated to the extent required taking into account the provisos that are specified under C. II. 3.

b) Before the entry into force of the constitutionally required legal elaboration of the rights of participation, the Federal Republic of Germanyʼs instrument of ratification of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 (Federal Law Gazette 2008 II page 1039) may not be deposited.

In brief, the Lisbon Treaty is not infringing the German Basic Law, however, the legislature did not comply with constitutional requirements when implementing constitutional guarantees of participation at European level. Accordingly, national legislation has to be changed, before ratification process can be completed.

End of Conditionality

Conditionality policy for countries of Western Balkans was introduced by the European Commission in 1996. On 29 April 1997, following the Commission’s report, the EU General Affairs Council adopted a regional approach introducing political and economic conditionality for the development of relations with countries in the region. That approach was further developed in June 1999, following the Commission’s proposal of 26 May for the creation of a Stabilisation and Association Process (SAP) for the countries of South-Eastern Europe, Croatia included. The main conditions to be complied with by those countries were specified as compliance with democratic principles, human rights and rule of law, respect for and protection of minorities, market economy reforms, regional cooperation and compliance with obligations under international peace agreements.

Conditionality policy can be effective only if the EU is able to live up to its promises and if States that are its object can benefit from implementation of often difficult political, economic and legal reforms. Conditionality, therefore, has to be strictly linked to fulfillment of democratic, economic and accession criteria. Above all, it has to be principled and applied in good faith.

Yet, Slovenian blocking of Croatia's accession negotiations drops out of EU's external policy goals. Slovenia is conditioning Croatia's accession to the EU by cession of territorial waters in the Northen Adriatic. Such a cession would extend Slovenian territorial waters beyond the 12 miles line from Slovenian soil, the request that is contrary to international law which no political option in Croatia is prepared to accept. In this way, a territorial claim has become a condition for accession.

Under Art. 10 of the Treaty Establishing European Community, "Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty."

EU conditionality policy is one of the Member States' obligations under the Treaties. Slovenian territorial requests are blocking the process of enlargement and pre-accession reforms in Croatia. Other countries in the region are taking notes. If EU has nothing to offer in return, the conditionality policy is bound to fail and the region is loosing incentives for reform.

Slovenian blockade is running against her Art. 10 obligations under the EC Treaty. It is making a mockery of international law and undermining the rule of law principle enshrined in Art. 6(1) of the Treaty on European Union.

If conditioning accession by territorial concessions is not put to an end, the EU's conditionality policy is bound to fail and the rule of law is bound to be eroded. In order to remain credible, the EU will have to address the issue, not excluding a possibility of invoking Art. 7 TEU procedure.