Judgment of 12 October 1993

Reasons:

A.

1

The constitutional complaints concern Germany’s participation in the establishment of the European Union (EU) through the Act Amending the Basic Law of 21 December 1992 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 2086) and the Act of 28 December 1992 on the Treaty on European Union of 7 February 1992 (BGBl II p. 1251).

I.

2

1. On 7 February 1992, the Treaty on European Union (TEU), which had been negotiated between the Member States of the European Communities, was signed in Maastricht (Netherlands). According to its introductory article, the process initiated with the establishment of the European Communities has reached ‘a new stage in the process of creating an ever closer union among the peoples of Europe’ (Art. A(2) Treaty on European Union).

3

a) By this Treaty, the High Contracting Parties establish among themselves a European Union (Art. A(1) Treaty on European Union). Its task is to organise, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples (Art. A(3) second sentence Treaty on European Union). According to Art. B of the Treaty on European Union, the EU sets for itself the following objectives: creating an area without internal frontiers; establishing economic and monetary union, ultimately including a single currency; asserting its identity on the international scene, in particular through the implementation of a common foreign and security policy; introducing EU citizenship; developing close cooperation on justice and home affairs; and maintaining in full the ‘acquis communautaire’ and building on it. According to Art. F(3) of the Treaty on European Union, the EU provides itself with the means necessary to attain its objectives and carry through its policies.

4

The European Union is founded on the three existing European Communities: the European Economic Community – EEC, now known as the European Community – EC; the European Coal and Steel Community – ECSC; and the European Atomic Energy Community – EAEC. It is supplemented by two forms of cooperation introduced by the Treaty on European Union: a common foreign and security policy (Art. B, second indent, Art. J Treaty on European Union) and justice and home affairs (Art. B, fourth indent, Art. K Treaty on European Union), which make up its ‘three pillars’ (Art. A(3) Treaty on European Union). The European Council, which brings together the heads of state and government of the Member States and the President of the Commission, provides the EU with the necessary impetus for its development and defines the general political guidelines thereof (Art. D Treaty on European Union).

5

b) The former European Economic Community is expanded into a European Community with additional tasks and powers (Art. G Treaty on European Union). The Treaty Establishing the European Economic Community is amended with a view to establishing the European Community. Its new version – the Treaty Establishing the European Community (hereinafter: EC Treaty) – retains the principle of conferral (Art. 3b(1), Art. 4(1) second sentence, Art. 4a, Art. 4b, Art. 189(1) EC Treaty). In accordance with the principle of subsidiarity (Art. 3b(2) EC Treaty), the Community takes action only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Art. 3b(3) of the EC Treaty provides that any action by the Community may not go beyond what is necessary to achieve the objectives of the Treaty.

6

b 1) The Treaty on European Union establishes EU citizenship, which is granted to every person holding the nationality of a Member State (Art. 8 EC Treaty), provides for the right to free movement (Art. 8a EC Treaty), grants residents the right to vote and to stand as a candidate in municipal elections in the Member State in which they reside and also grants the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence; in this regard, the right to vote and to stand for election is decoupled from nationality (Art. 8b EC Treaty). Under Art. 8c of the EC Treaty, every EU citizen is entitled to protection by the diplomatic or consular authorities of any Member State. The Treaty also contains the first steps towards a common visa policy (Art. 100c EC Treaty, Art. K.1 no. 2 Treaty on European Union).

7

b 2) The Treaty on European Union gives rise to additional tasks and powers of the European Community for education policy (Art. 126 EC Treaty), vocational training policy (Art. 127 EC Treaty), cultural policy (Art. 128 EC Treaty), health policy (Art. 129 EC Treaty), consumer protection (Art. 129a EC Treaty) and trans-European networks (Art. 129b ff. EC Treaty). In Art. 130d of the EC Treaty and the Protocol on economic and social cohesion, the contracting parties have agreed to set up a Cohesion Fund to provide financial contribution to projects in the fields of environment and trans-European networks in the area of transport infrastructure.

8

b 3) The economic and monetary union, planned since 1972, is established by Title VI of the EC Treaty. Pursuant to Art. 102a ff. of the EC Treaty, the Member States are to coordinate their economic policies subject to Community guidelines to guarantee the convergence of the economic performances of the Member States. Monetary policy will be gradually brought within the framework of the Community and placed in the hands of a European System of Central Banks (ESCB) (Art. 105 ff. EC Treaty).

9

Stage one (convergence) of the economic and monetary union, which started on 1 July 1990, is to complete the European Monetary System (EMS) through participation of all Member States. In accordance with Art. 109e of the EC Treaty, this stage will be followed by stage two (coordination), which paves the way for the completion of the economic and monetary union. To this end, the Member States will, before 1 January 1994, adopt national measures to abolish all existing restrictions on the movement of capital and payments, as well as any kind of credit facilities or prerogatives of the public sector with the central banks (Art. 109e(2)(a) first indent EC Treaty), and make provision for achieving price stability, deficit reduction and sound public finances (Art. 109e(2)(a) second indent EC Treaty). Upon entering stage two, the European Monetary Institute will be established. It is the predecessor institution to the European Central Bank (ECB) and will prepare its activities in stage three (Art. 109f EC Treaty).

10

In stage three, the Member States’ competences for a common monetary policy (monetary policy, credit policy, interest rate policy and exchange rate policy) will be exercised by the European Community. To this end, an ESCB and an independent ECB will be established (Art. 4a in conjunction with Art. 105 ff. EC Treaty). Entry into stage three is contingent upon the fulfilment, by a sufficient number of Member States, of certain requirements regarding price stability, a merely moderate budget deficit, exchange rate stability and interest rate level (convergence criteria; Art. 109j(1) EC Treaty in conjunction with the Protocol on the convergence criteria). The Council of the European Communities (meeting in the composition of the heads of state and government) will decide by qualified majority, no later than by the end of 1996, whether a majority of Member States fulfil the necessary conditions and whether it is expedient to enter into stage three. If the Council decides that this is the case, it can set the date for establishing an ECB and for the adoption of a single currency (Art. 109j(3) EC Treaty). If this is not the case, stage three is to begin no later than 1 January 1999 (Art. 109j(4) EC Treaty).

11

c) An Agreement on social policy, concluded between the Member States of the European Communities, with the exception of the United Kingdom of Great Britain and Northern Ireland, is annexed to the Treaty. According to this Agreement, the Community supports and complements the activities of the Member States to improve in particular the working environment, working conditions, the information and consultation of workers, equality between men and women with regard to labour market opportunities and treatment at work and the integration of persons excluded from the labour market. To this end, the Council may adopt minimum requirements for gradual implementation, with regard to the preconditions in Art. 2 of the Agreement, by means of directives.

12

The Act Amending the Basic Law of 21 December 1992, which, inter alia, inserted Arts. 23, 28(1) third sentence, 52(3a) and 88 second sentence into the Basic Law (Grundgesetz – GG), was promulgated in the Federal Law Gazette I of 24 December 1992 (p. 2086) and entered into force on 25 December 1992.

13

Art. 23(1) of the Basic Law (Grundgesetz – GG), new version, reads as follows:

14

With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social and federal principles, to the rule of law and to the principle of subsidiarity and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law. To this end the Federation may transfer sovereign powers by a law with the consent of the Bundesrat. The establishment of the European Union, as well as changes in its treaty foundations and comparable regulations that amend or supplement this Basic Law or make such amendments or supplements possible, shall be subject to paragraphs (2) and (3) of Article 79.

15

A new third sentence was inserted into Art. 28(1) of the Basic Law:

16

In county and municipal elections, persons who possess the citizenship of any member state of the European Community are also eligible to vote and to be elected in accordance with European Community law.

17

Section (3a) was inserted into Art. 52 of the Basic Law:

18

For matters concerning the European Union the Bundesrat may establish a Chamber for European Affairs, whose decisions shall be considered decisions of the Bundesrat; Article 51(2) and (3) second sentence shall apply accordingly.

19

A second sentence was added to Art. 88 of the Basic Law, which concerns the Bundesbank:

20

Within the framework of the European Union, its responsibilities and powers may be transferred to the European Central Bank, which is independent and committed to the overriding goal of assuring price stability.

21

3. In its final reading on 2 December 1992, the Bundestag adopted the Act of Approval of the Treaty on European Union with 543 of 568 votes (Stenographic Record, Stenografischer Bericht – Sten. Ber. 12/126 p. 10879 ff.); the Bundesrat gave its unanimous consent on 18 December 1992 (Bundesrat document, Bundesratsdrucksache – BRDrucks. 810/92, Sten. Ber. of the 650th sitting of 18 December 1992). The Act was promulgated in the Federal Law Gazette on 30 December 1992 and entered into force on 31 December 1992 (BGBl II p.1251ff.). […]

22-33

[…]

34

4. Under Art. R(1) of the Treaty on European Union, the Treaty must be ratified by the Member States in accordance with their respective constitutional requirements. The instruments of ratification are to be deposited with the government of the Italian Republic.

35

Following the complainants’ application for a preliminary injunction to prevent Germany from assuming obligations under international law with regard to the Treaty on European Union, the Federal President declared […] that he would not sign the instrument of ratification before the Federal Constitutional Court had decided the matter in the principal proceedings. The Federal Government gave assurances that it would not deposit the instrument of ratification for the time being.

II.

36

The constitutional complaints challenge the Act of Approval of the Treaty on European Union and the Act Amending the Basic Law. Complainant no. 1 asserts a violation of his fundamental rights, and rights equivalent to fundamental rights, following from Art. 1(1), Art. 2(1), Art. 5(1), Art. 9(1) in conjunction with Art. 21(1) second sentence, Art. 12(1), Art. 14(1), Art. 38(1) and Art. 20(4) in conjunction with Art. 93(1) no. 4a of the Basic Law. Complainants no. 2 – members of the European Parliament elected in Germany – lodge their constitutional complaint as citizens of the Federal Republic of Germany; they essentially assert a violation of their rights equivalent to fundamental rights following from Art. 20(4) and Art. 38(1) and (2) of the Basic Law.

37-55

[…]

III.

56

1. From the group of bodies entitled to submit statements pursuant to § 94(4) in conjunction with § 77 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), the Federal Government, the Bundestag and the Bundesrat submitted statements. They consider the constitutional complaints to be inadmissible, or in any case unfounded.

57

2. The Court heard the President of the Bundesbank, Prof. Dr. Helmut Schlesinger, and the Director of the Bundesbank, Dr. Wolfgang Rieke, as experts on matters concerning the economic and monetary union. At the Court’s request, the Commission of the European Communities sent the head of its Legal Service, Director-General Jean-Louis Dewost, to attend the oral hearing; he gave a statement on the interpretation of individual provisions of the Treaty.

B.

58

The constitutional complaint of complainant no. 1 challenging the Act of Approval of the Treaty on European Union is admissible insofar as he asserts a violation of his rights under Art. 38 of the Basic Law. For the rest, the constitutional complaints are inadmissible.

59

A constitutional complaint is only admissible if the complainant asserts that the challenged act violates a right that confers standing to lodge a constitutional complaint (Art. 93(1) no. 4a Basic Law, § 90(1) Federal Constitutional Court Act); and if they are directly and presently affected by this act. The complainant must demonstrate and substantiate that such a violation may have occurred (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 28, 17 <19>; 52, 303 <327>; 65, 227<232 f.>).

60

1. Complainant no. 1 sufficiently demonstrated that the Act of Approval may violate his right under Art. 38(1) of the Basic Law.

61

a) Art. 38(1) and (2) of the Basic Law guarantees German citizens entitled to vote the individual right to participate in the election of the members of the German Bundestag (cf. BVerfGE 47, 253 <269>). State authority is derived from the people through elections. The Bundestag then exercises state authority as a legislative organ, which also elects the Federal Chancellor and scrutinises the government (Art. 20(2) first and second sentence Basic Law). Art. 38 of the Basic Law does not just guarantee citizens the right to vote in elections to the German Bundestag and ensure adherence to the constitutional principles of electoral law in such elections. The guarantee of Art. 38 of the Basic Law also extends to the fundamental democratic substance of this right. German citizens entitled to vote are guaranteed the individual right to vote in elections to the German Bundestag and thus participate in providing legitimation to state authority at the federal level and influence the exercise of such state authority. In this respect, the right requires a more specific determination. In the present case, such determination is only required insofar as the exercise of sovereign powers by supranational organisations in the context of the realisation of a united Europe (Art. 23 of the Basic Law) is at issue.

62

If the Bundestag relinquishes tasks and powers, in particular those regarding legislation as well as election and scrutiny of other holders of state authority, this affects the democratic substance of Art. 38 of the Basic Law. With regard to the European Union and the European Communities, Art. 23(1) of the Basic Law, subject to the conditions set out therein, authorises the federal legislator to allow the European Union the independent exercise of sovereign powers, provided that it does not go beyond the limit set by Art. 79(3) of the Basic Law (Art. 23(1) third sentence Basic Law). The legislator amending the Constitution specifically enacted Art. 23 of the Basic Law for European integration and its further development. This provision determines the substance of the right guaranteed by Art. 38 of the Basic Law. Within the scope of application of Art. 23 of the Basic Law, Art. 38 precludes a violation of the principle of democracy – to the extent this principle is declared inviolable by Art. 79(3) in conjunction with Art. 20(1) and (2) of the Basic Law – resulting from the erosion of the legitimation of state authority and influence on the exercise of sovereign powers that is provided by elections through a shift of tasks and powers away from the Bundestag.

63

The complainant’s right under Art. 38 of the Basic Law might be violated if the transfer of Bundestag competences to an institution of the European Union or the European Communities formed by the national governments is to such an extent that the essential minimum requirements following from Art. 20(1) and (2) in conjunction with Art. 79(3) of the Basic Law regarding democratic legitimation of sovereign authority vis-à-vis the citizen are no longer satisfied.

64-65

b) […]

66

c) […]

67

The constitutional complaint of complainant no. 1 is inadmissible insofar as he asserts a violation of his fundamental rights under Art. 1(1), Art. 2(1), Art. 5(1), Art. 12(1) and Art. 14(1) of the Basic Law.

68

a) Insofar as the complainant claims that the legislative approval of monetary union violates his fundamental rights under Art. 12(1) and Art. 14(1) of the Basic Law, it is not ascertainable that these fundamental rights preclude the replacement of the Deutschmark with the ECU. Art. 88 second sentence of the Basic Law expressly provides that tasks and powers of the Bundesbank may be transferred to the European Central Bank within the framework of the European Union. This authorisation amounts to a recognition under constitutional law of the development of a European monetary union; the provision, enacted specifically for the establishment of the European Union, also implies that the exercise of the authorisation as such does not run counter to fundamental rights.

69

b) The complainant’s assertion that his fundamental rights have been violated, in that the fundamental rights are no longer guaranteed only for Germany and by German state organs and that instead, as European fundamental rights, they have been given a different content, is also inadmissible. The Basic Law’s openness to European integration is laid down in its Preamble and further determined in Arts. 23 and 24. It follows that interferences affecting fundamental rights can also result from acts of European institutions and that fundamental rights protection thus must be guaranteed for the entire scope of application of the acts in question; in this way, there is an expansion of both the territorial scope of application of the fundamental freedoms and the perspectives to be compared in applying the general guarantee of the right to equality.

70

This does not involve a meaningful lowering of fundamental rights standards. Through its powers of judicial review (cf. BVerfGE 37, 271 <280 ff.>; 73, 339 <376 f.>), the Federal Constitutional Court ensures that effective protection of the fundamental rights of those who live in Germany is generally guaranteed vis-à-vis the sovereign powers of the Communities, and that this protection is essentially comparable to the fundamental rights protection that is inalienable under the Basic Law, and generally guarantees the essence of fundamental rights. The Federal Constitutional Court thereby ensures that the essence of the fundamental rights is upheld, including vis-à-vis the sovereign authority of the Communities (cf. BVerfGE 73, 339 <386>). The acts of a special public authority of a supranational organisation separate from the state authority of the Member States can also affect fundamental rights holders in Germany. They touch upon the guarantees of the Basic Law and the tasks of the Federal Constitutional Court concerning the protection of fundamental rights in Germany, which, in this respect, do not just apply to acts of German state organs (deviating from BVerfGE 58, 1 <27>). However, the Federal Constitutional Court exercises its jurisdiction regarding the applicability of derived Community law in Germany within a cooperative relationship with the Court of Justice of the European Communities. The Court of Justice guarantees fundamental rights protection for the entire territory of the European Communities in each case and the Federal Constitutional Court can therefore limit itself to a general guarantee of essential fundamental rights standards (cf. BVerfGE 73, 339 <387>).

71

c) The complainant’s assertion that Art. L of the Treaty on European Union creates a gap in legal protection that is contrary to the Basic Law by not assigning jurisdiction for EU measures to the Court of Justice of the European Communities is incorrect. Art. L of the Treaty on European Union only excludes from the jurisdiction of the Court of Justice those Treaty provisions that do not authorise EU measures with direct effect on fundamental rights holders within the sovereign sphere of the Member States. If, in the future, measures affecting fundamental rights were to be provided for in the context of the forms of cooperation under Arts. J and K of the Treaty on European Union, such measures would require another act of approval, which could then be reviewed as to potential gaps in legal protection.

72

The Federal Government gave assurances that it is the unanimous opinion of all Member States that Art. L of the Treaty on European Union will not lead to any gaps in legal protection.

73

c 1) Arts. A to F of the Treaty on European Union do not grant any authorisation to carry out acts of any kind vis-à-vis fundamental rights holders. The titles on the common foreign and security policy (Title V, Art. J to J.11 Treaty on European Union) and on cooperation in the area of justice and home affairs (Title VI, Art. K to K.9 Treaty on European Union) initially only authorise the Council to define common positions (Art. J.2(2), Art. K.3(2)(a) Treaty on European Union). Such provisions by definition lack a binding effect for the individual that would affect fundamental rights.

74

c 2) Insofar as Titles V and VI of the Treaty on European Union provide that the Council can adopt common measures and, in order to realise cooperation in the area of justice and home affairs, adopt joint action, this does not merit a different assessment. Regardless of whether such Council decisions, which must either be adopted unanimously or at least be based on a prior unanimous Council decision (Art. J.3 no. 2, Art. J.8(2); Art. K.3(2)(b), Art. K.4(3) Treaty on European Union), create international law obligations for the Member States (cf. Art. J.3 no. 4; no express framework in Art. K.3(2)(b) of the Treaty on European Union), the Council cannot use such decisions to make law that is directly applicable in the Member States and takes precedence.

75

The domains of foreign and security policy as well as justice and home affairs are subject to European cooperation within the framework of the EU; however, the Member States deliberately did not integrate them into the supranational order of competences of the European Communities. Art. A(3) of the Treaty on European Union, which sets out the foundations of the EU, distinguishes between the supranational European Communities and its future supplemental provisions in the form of the new policies and forms of cooperation established by Titles V and VI of the Treaty on European Union. This separation is confirmed by Art. E of the Treaty on European Union, which provides that European institutions are to exercise their powers either under the conditions provided for by the (amended) primary law of the European Communities or by the other provisions of the Treaty on European Union. When acting in the domains of foreign and security policy or justice and home affairs, the Council cannot resort to supranational acts provided under European Community law. The only exception is when the Treaty declares provisions of the EC Treaty to be applicable in these domains. While Art. J.11(1) and Art. K.8(1) of the Treaty on European Union do provide for such applicability for some provisions of the EC Treaty, they exclude Art. 189 of the EC Treaty, which defines EC legal acts that have direct effect.

76

In respect of Title VI, Art. K.9 of the Treaty on European Union confirms that a Treaty change (under the simplified procedure) – which would have to be ratified by all Member States – would be required to make the intergovernmental cooperation provided for therein subject to the supranational competence of the European Community.

77

c 3) Art. K.2(1) of the Treaty on European Union provides that the domains of justice and home affairs, which are subject to cooperation, must be dealt with in compliance with the European Convention on Human Rights and the Geneva Convention on Refugees. This, however, does not imply that Title VI of the Treaty on European Union allows direct interferences with fundamental rights. Rather, Art. K.2(1) of the Treaty on European Union affirms the human rights obligations that are incumbent upon all Member States and which must be observed for joint measures – in cases where the implementation of such measures might result in interferences with fundamental rights – before direct interferences occur.

78

c 4) If cooperation in the area of justice and home affairs pursuant to Art. K.3(2)(c) of the Treaty on European Union is carried out in the form of international treaties, these treaties can stipulate that the Court of Justice of the European Communities is to have jurisdiction (Art. L(b) Treaty on European Union). In this respect, no unconstitutional gap in legal protection can arise at present. Moreover, such treaties require a separate act of ratification, which can then also be reviewed by the Federal Constitutional Court.

79

c 5) If joint actions and measures taken under Titles V and VI of the Treaty on European Union create binding obligations for the Member States under international law to carry out interferences that affect fundamental rights, all of these interferences can be fully reviewed by the German courts if they are carried out in Germany. In this regard, supranational law which might take precedence does not supersede the fundamental rights protection afforded by the Basic Law. In any case, international law obligations assumed by the Federal Republic of Germany cannot reduce the level of protection provided by fundamental rights vis-à-vis German state authority; accordingly, European rules for fundamental rights interferences by German state authority adopted on the basis of Titles V or VI of the Treaty on European Union cannot restrict fundamental rights protection before the German courts. In this respect, the considerations that govern traditional international treaties also apply here: To the extent that the domestic implementation of such treaties would violate fundamental rights, it is precluded by constitutional law.

80

If a Council decision adopted under Title V or VI of the Treaty on European Union were to be implemented through a legal act of the European Communities – e.g. on the basis of Art. 228a of the EC Treaty – and thereby resulted in an interference with fundamental rights, the Court of Justice of the European Communities or, alternatively, the Federal Constitutional Court would guarantee sufficient fundamental rights protection (cf. BVerfGE 73, 339 <387>). In this respect, too, the Federal Constitutional Court and the Court of Justice work together in a cooperative relationship, complementing one another, to guarantee fundamental rights protection.

81

d) The complainant asserts that the Act of Approval of the Treaty on European Union violates Art. 5(1) of the Basic Law; such a violation, however, can be ruled out from the outset. The communication-related freedoms [i.e. freedom of expression, information and the press] protect the free participation in an open communication process, but they do not guarantee a specific outcome of such participation or a specific framework for the exchange of views. The freedom of the individual to obtain information from European sources and to influence public opinion in the Member States, and thus to influence the European communication process, is not affected by the Treaties; any language barriers occurring in this context are rooted in the linguistic diversity within the EU and therefore pose no separate obstacle for exercising this fundamental right.

82

e) Insofar as the complainant claims that Art. 138a of the EC Treaty violates Art. 9 and Art. 21 of the Basic Law, his constitutional complaint is also inadmissible. It is not ascertainable why the recognition of political parties, as an aspect of integration within the EU, should bind or limit an individual party or its members to a specific programme or objective.

83

f) Insofar as the complainant asserts that provisions of the Treaty on European Union violate the principles of the social state and of federalism, these challenges are inadmissible pursuant to Art. 93(1) no. 4a of the Basic Law.

84

3. Complainant no. 1 invokes Art. 38 of the Basic Law to challenge the Act Amending the Basic Law of 21 December 1992 to the extent that Art. 23 and Art. 28(1) third sentence (new version) were inserted into the Basic Law by this Act; this challenge is inadmissible.

85

a) Art. 23(1) of the Basic Law constitutes a special authorisation to participate in the development of the European Union with a view to establishing a united Europe (cf. the Federal Government’s explanatory memorandum to the Draft Act Amending the Basic Law, Bundestag document, Bundestagsdrucksache – BTDrucks. 12/3338 p. 6). However, Art. 23(1) third sentence of the Basic Law expressly provides that this authorisation is subject to the limits set by Art. 79(3) of the Basic Law, which, in turn, determine the limitations under which the Constitution-amending legislator operates. Thus, no discrepancy can arise between the democratic core of Art. 38 of the Basic Law and the new Art. 23.

86

b) The challenge that the structural principles of the European Union listed in Art. 23(1) first sentence of the Basic Law (new version) have not been realised is also inadmissible. Art. 38 of the Basic Law does not mandate a specific design of the institutional framework of the EU.

87

c) Also inadmissible is the complainant’s assertion that his rights as a citizen entitled to vote and to stand for election have been violated by the authorisation, in the Act Amending the Basic Law of 21 December 1992, to introduce a right to vote and to stand for election at the municipal level for nationals of other EC Member States and by the use of this authorisation in Art. 8b of the EC Treaty. At least with regard to the right to vote and to stand for election at the municipal level, Art. 38 of the Basic Law does not grant any individual right to citizens entitled to vote and to stand for election that would allow them to protect themselves against competition from non-German candidates and voters by filing a complaint under electoral law.

88

4. Insofar as the constitutional complaints invoke Art. 20(4) of the Basic Law and apply for ‘another remedy’ to be provided by the Federal Constitutional Court, they are also inadmissible. Different interpretations of Art. 20(4) of the Basic Law notwithstanding, this case does not raise the issue of a right to resist since, as shown by the present proceedings, the complainants can seek remedies under the rule of law to challenge the ratification of the Treaty on European Union.

89

5. The constitutional complaints of complainants no. 2 are inadmissible in their entirety. To the extent they invoke Art. 20(4) of the Basic Law, the inadmissibility of this assertion has been demonstrated above. The complainants additionally assert that Art. 38 of the Basic Law affords them a right to a referendum, either directly or by analogy, on the grounds that this Act encroaches upon the constitutional core protected by Art. 79(3) of the Basic Law, which is beyond the reach of constitutional amendment; they claim that the Act of Approval of the Treaty on European Union violates this right. This challenge is also inadmissible. The Basic Law only affords individual rights in the framework of the constitutional order; it does not grant individual rights to challenge the procedure or the substance of constitutional amendments. Art. 79(3) of the Basic Law binds the development of the state in Germany to the core of the constitutional order identified therein, and thereby seeks to consolidate the Constitution currently in force and guard it against changes directed at creating a new Constitution, without being itself normatively binding on the constituent power of the people. It thus sets limits to the Constitution-amending legislator and formally eliminates the possibility that a constitutional amendment affecting the immutable core of the Basic Law can be legitimated through a referendum. Art. 146 of the Basic Law also does not give rise to a right of the individual that confers standing to lodge a constitutional complaint (Art. 93(1) no. 4a Basic Law).

C.

90

To the extent that the constitutional complaint of complainant no. 1 is admissible, it is unfounded. In the present case, the Federal Constitutional Court can only review the transfer of sovereign powers to the European Union and the European Communities against the standard of the guarantee contained in Art. 38 of the Basic Law (see I. below). It follows from the contents of the Treaty that the Act of Approval does not violate this guarantee. The Treaty establishes a European association of states that finds its basis in the Member States and respects their national identities; it concerns Germany’s membership of a supranational organisation, not Germany’s participation in a European state (see II. 1 below). The tasks of the European Union and the powers transferred to it for their exercise are set out in a sufficiently foreseeable manner, given that the Treaty lays down the principle of conferral, does not contain a clause granting the European Union the competence to decide on its own competences (Kompetenz-Kompetenz), and makes the granting of further tasks and powers to the European Union and the European Communities contingent on Treaty amendments and changes, thus subjecting them to the consent of national parliaments (see II. 2 below). The scope of the tasks and powers transferred to the EU and the type of decision-making within the EU and the institutions of the European Communities set out in the Treaty do not undermine the competences of the Bundestag for making decisions and for scrutiny to such a degree that the principle of democracy, to the extent that it is declared inviolable by Art. 79(3) of the Basic Law, would be violated (see II. 3 below).

I.

91

1. Within the scope of application of Art. 23 of the Basic Law, the right to participate in providing legitimation to state power through elections and to influence its exercise that is guaranteed by Art. 38 of the Basic Law precludes a violation of the principle of democracy – to the extent this principle is declared inviolable by Art. 79(3) in conjunction with Art. 20(1) and (2) of the Basic Law – resulting from a shift of tasks and powers away from the Bundestag (see B. 1. a) above).

92

2. The substance of the principle of democracy that is declared inviolable by Art. 79(3) of the Basic Law requires that the performance of state tasks and the exercise of state powers be attributable to the people’s will and, in principle, be justified before it. This necessary link between the state and the people can be created in various ways. What is decisive is that a sufficiently effective democratic legitimation – i.e. a certain level of legitimation – is achieved (cf. BVerfGE 83, 60 <72>).

93

a) When the Federal Republic of Germany becomes a member of an association of states that can act with public authority and when this association can exercise independent sovereign powers – as expressly allowed by the Basic Law for the purpose of creating a united Europe (Art. 23(1) Basic Law) – democratic legitimation cannot be achieved in the same way as within a state order with a uniform and comprehensive constitutional framework. When sovereign powers are transferred to supranational organisations, the representative organ elected by the people – the Bundestag – and, with it, the electorate, necessarily lose influence on the formation of the political will and decision-making processes. Any accession to a supranational community means that the acceding state, as a member of such a community, is bound by its decisions. The Member State – and thus its citizens – also gains influence by participating in the formation of the will of the Community to pursue common – and thereby also its own – aims, the outcome of which is binding on all Member States and therefore requires a Member State to recognise that it will be bound by such decisions.

94

Such openness for assuming legal obligations within the international legal community and within a smaller supranational community is part of a democratic state that seeks to participate as an equal member in supranational institutions, and in particular, to participate in the development of the European Union – as reflected in the Basic Law’s Preamble and expressly set out in its Arts. 23 and 24. Under the organisational and procedural framework of the EU, the Member States participate in its decision-making, but are then also bound by its decisions, regardless of whether these decisions reflect their own participation. The transfer of sovereign powers means that their exercise no longer depends on the intent of one Member State alone. If this were deemed to amount to a violation of the principle of democracy, it would not only run counter to the Basic Law’s openness to European integration that was intended and expressed by the constitutional legislator of 1949; the concept of democracy underlying this notion would make it impossible for any democratic state to participate in any kind of integration that does not follow the principle of unanimity. Unanimity as a requirement for every decision necessarily puts the particular intent of individual states above the intent of the supranational community and thus calls into question the structural basis of such a community. Such an outcome is not in line with the wording and the purpose of Arts. 23 and 24 of the Basic Law. The transfer of sovereign powers authorised by the aforementioned provisions requires a legislative act; the requirement of a law (Art. 23(1) second sentence, Art. 24(1) Basic Law) assigns political responsibility for the transfer of sovereign powers to the Bundestag – in cooperation with the Bundesrat – as the national representative bodies; the Bundestag must discuss the far-reaching consequences of consenting to such transfer, not least the consequences for the Bundestag’s competences, and make a decision in this regard. The democratic legitimation of both the existence of a community of states and its powers to adopt majority decisions that are binding on the Member States is provided by the act of approval regarding accession to such a community. However, in accordance with the requirement of mutual respect and understanding following from Community loyalty, the majority principle is subject to limits set by the constitutional principles and fundamental interests of the Member States.

95

b) The principle of democracy therefore does not stand in the way of Germany’s membership of a supranational community. However, such membership is only permissible if the legitimation and influence derived from the people is also guaranteed within the association of states.

96

b 1) The European Union sees itself as a union among the peoples of Europe (Art. A(2) Treaty on European Union), and an association of democratic states that is based on dynamic developments (cf., e.g., Art. B(1) last indent; Art. C(1) Treaty on European Union); when it performs sovereign tasks and exercises sovereign powers to this end, it is primarily the citizens of the Member States that must provide democratic legitimation through their national parliaments.

97

Yet the expansion of tasks and powers of the Community also leads to a growing necessity to complement the democratic legitimation and influence provided by the national parliaments with a European Parliament that ensures representation of the citizens and that forms a further democratic basis for the policies of the EU. The Maastricht Treaty establishes EU citizenship, which creates a permanent legal bond between the nationals of the Member States. Although it is not as strong as belonging to the same state, it does give a legally binding expression to the existential common features that do exist (cf. in particular Art. 8b(1) and (2) EC Treaty). The influence of EU citizens can result in democratic legitimation of the European institutions to the extent that the prerequisites for such legitimation are met in the Member States of the European Union.

98

If democracy is not to remain a mere formal link between those governing and those governed, it requires certain general prerequisites, such as a continuous free debate between opposing social forces, interests and ideas, in the course of which political aims become clear and change (cf. BVerfGE 5, 85 <135, 198, 205>; 69, 315 <344 ff.>) and which results in public opinion determining the political will. This also includes that the decision-making procedures of the organs exercising sovereign powers and their political aims are generally transparent and comprehensible, and that citizens entitled to vote can communicate in their language with the public authority to which they are subject.

99

Insofar as they do not yet exist, such conditions can evolve within the institutional framework of the European Union. Such development depends to a great extent on communicating the aims of the Community institutions and their decision-making processes within the nations. Political parties, associations, the press and broadcasting organisations are both the media and independent factors in this communication process, which is capable of forming public opinion in Europe (cf. Art. 138a EC Treaty). The European Council, too, is striving to achieve more openness and transparency in European decision-making processes ([…]).

100

b 2) In the association of sovereign states that is the European Union, democratic legitimacy is derived from linking the actions of EU institutions to Member State parliaments; in addition, within the institutional structures of the EU, democratic legitimacy is increasingly provided by the European Parliament elected by Member State citizens, as the European nations grow ever closer. The legitimation provided by the European Parliament already has a supporting role in the current stage of development, which could be strengthened further if it were elected in a uniform procedure in all Member States pursuant to Art. 138(3) of the EC Treaty and were given more influence on the policies and law-making of the European Communities. It is essential that the development of the democratic foundations of the European Union keeps pace with European integration and that Member States maintain lively democracies in the course of further European integration. Granting too many tasks and powers to the European Union would weaken democracy at the level of the Member States, with national parliaments no longer able to provide sufficient legitimation with regard to the sovereign powers exercised by the European Union.

101

When the citizens of the Member States provide democratic legitimation through national parliaments, as is currently the case, the principle of democracy sets limits to the expansion of the tasks and powers of the European Communities. State authority vis-à-vis the people in the Member States is derived from these people. The Member States must retain sufficiently significant tasks, in respect of which the people of a Member State can partake in policy formulation and articulate their political will in a process controlled by them, so as to reflect what unites them as a relatively homogeneous people in spiritual, social and political terms ([…]).

102

It follows from the foregoing that the Bundestag must retain tasks and powers of substantial significance.

103

c) The exercise of sovereign powers by an association of states such as the European Union is based on authorisations given by sovereign states that typically act through their governments in the supranational sphere, thereby steering the course of integration. Such exercise is therefore primarily determined by governments. If such powers exercised by the Community are to be based on the democratic process of forming the political will of each individual populace, this requires that the powers are exercised by an institution that represents the governments of the Member States, which, in turn, are subject to democratic scrutiny. The responsibility for enacting European law may lie – notwithstanding the necessity of democratic scrutiny of national governments – with an institution composed of representatives of the Member State governments, and thus with the executive, to a greater extent than would be permissible under constitutional law at the national level.

104

3. Given that German citizens entitled to vote primarily exercise their right to partake in democratic legitimation of the institutions tasked with the exercise of sovereign powers through elections to the Bundestag, it is the Bundestag that must decide on Germany’s membership of the European Union, its continued existence and development.

105

In light of the foregoing, a law that creates an opening in the German legal order, allowing law from the – supranational – European Communities to become directly valid and applicable in Germany, but does not sufficiently specify the powers transferred to the European Communities and the envisaged integration agenda violates Art. 38 of the Basic Law (cf. BVerfGE 58, 1 <37>). If it is unclear to what extent the German legislator approved a transfer in the exercise of sovereign powers, then the European Communities would be enabled to claim unspecified tasks and powers. This would amount to a blanket authorisation, and thus to a relinquishing of sovereign powers, as to which Art. 38 of the Basic Law affords protection.

106

In view of the fact that the text of an international treaty must be negotiated between the contracting parties, however, the requirements regarding the specificity and force of the treaty provisions cannot be the same as those applicable to a statute by virtue of the requirement of a parliamentary decision (cf. BVerfGE 77, 170 <231 f.>). What is decisive is that Germany’s membership and the rights and obligations arising therefrom – in particular the direct and binding acts of the European Communities in the domestic legal sphere – are set out in the Treaty in a manner that makes them foreseeable for the legislator, and that the legislator lays them down in the act of approval in a sufficiently specific manner (cf. BVerfGE 58, 1 <37>; 68, 1 <98 f.>). This also means that subsequent fundamental changes to the integration agenda as laid down in the Treaty on European Union and related authorisations are no longer covered by the domestic act of approval of the Treaty (cf. BVerfGE 58, 1 <37>; BVerfGE 68, 1 <98 f.>; […]). If European institutions or bodies were to handle or develop the Treaty on European Union in a manner that is no longer covered by the Treaty underlying the German act of approval, the legal acts following therefrom would not be binding in Germany’s sovereign sphere. Constitutional law would then preclude German state organs from applying these legal acts in Germany. The Federal Constitutional Court thus reviews whether legal acts of the European institutions and bodies remain within the boundaries of the sovereign powers transferred to them or whether they cross these boundaries (cf. BVerfGE 58, 1 <30 f.>; 75, 223 <235, 242>).

II.

107

To the extent that it is under review in the present proceedings, the Treaty on European Union satisfies these requirements.

108

As set out above, the Treaty on European Union establishes an association of sovereign states with the aim of creating ever closer union among the peoples of Europe – organised as states – (Art. A Treaty on European Union), rather than a state based on a European people. In light of this, the question raised by complainant no. 1 – whether the Basic Law allows for Germany’s membership of a European state or precludes it – is moot. The only matter under review here is the act of approval of Germany’s membership of an association of sovereign states.

109

1. a) The Member States established the European Union in order to perform certain of their tasks jointly and to exercise their sovereignty jointly in this regard. In their decision adopted in Edinburgh on 11 and 12 December 1992 ([…]), the heads of state and government meeting within the European Council emphasised that in the framework of the Treaty on European Union, independent and sovereign states have freely decided, in accordance with the existing Treaties, to exercise in common some of their competences. In accordance with this decision, the Treaty on European Union takes into consideration the independence and sovereignty of the Member States by requiring the European Union to respect the national identities of its Member States (Art. F(1) Treaty on European Union; […]), by only conferring specific competences and powers on the European Union and the European Communities in accordance with the principle of conferral (Art. E Treaty on European Union, Art. 3b(1) EC Treaty) and by making the principle of subsidiarity a binding principle of law for the European Union (Art. B(2) Treaty on European Union) and for the European Communities (Art. 3b(2) EC Treaty).

110

Notwithstanding the wish for further integration implied in the name ‘European Union’, the ultimate goal towards which the process of European integration may proceed following further Treaty changes remains unclear ([…]). In any case, there is at present no intent to establish a ‘United States of Europe’, in the sense of an entity that would be comparable to the United States of America ([…]). Art. 88-1 of the French Constitution, which was newly inserted in view of the Treaty on European Union, refers to Member States that exercise some of their competences jointly within the European Union and the European Communities.

111

To the extent that they are exercised as sovereign powers, the competences and powers granted to the European Union and the European Communities essentially remain those of an economic community. In this respect, the central areas of activity of the European Communities are the customs union and freedom of goods (Art. 3(a) EC Treaty), the internal market (Art. 3(c) EC Treaty), the approximation of the laws of Member States to ensure the functioning of the common market (Art. 3(h) EC Treaty), coordination of Member States’ economic policies (Art. 3a(1) EC Treaty) and the development of a monetary union (Art. 3a(2) EC Treaty). Outside of the European Communities, cooperation remains intergovernmental in nature; this applies in particular to foreign and security policy and justice and home affairs (see B. 2. c) above).

112

Thus, following the entry into force of the Treaty on European Union, the Federal Republic of Germany remains a member of an association of sovereign states whose powers are derived from the Member States and can only have binding effects in Germany by virtue of a domestic order giving effect to it in Germany. Germany is one of the ‘masters of the Treaties’ – states that have bound themselves to the Treaty on European Union, concluded ‘for an unlimited period’ (Art. Q Treaty on European Union) with the intent of long-term membership, but who ultimately can revoke their membership by way of an act to this effect. The validity and applicability of European law in Germany depend on the order giving effect to it at the domestic level that is contained in the act of approval. Germany thus retains the quality of a sovereign state in its own right and the status of sovereign equality with other states within the meaning of Art. 2 no. 1 of the United Nations Charter of 26 June 1945 (BGBl 1973 II p. 430).

113

b) In the first instance, the necessary influence of the Bundestag is guaranteed by the fact that Art. 23(1) of the Basic Law requires an act of Parliament for Germany’s membership of the European Union and its further development either through Treaty change or an expansion of its powers; subject to Art. 23(1) third sentence of the Basic Law, this act of Parliament must be adopted with the qualified majorities laid down in Art. 79(2) of the Basic Law. Moreover, the Bundestag participates in the exercise of German membership rights within the European institutions. In accordance with Art. 23(2) and (3) of the Basic Law and with the act enacted for its implementation – the Act on the Cooperation between the Federal Government and the German Bundestag in Matters Concerning the European Union (Gesetz über die Zusammenarbeit von Bundesregierung und Deutschem Bundestag in Angelegenheiten der Europäischen Union) of 12 July 1993 (BGBl I p. 311) – the Bundestag participates in the Federation’s policy formulation in these matters. The Federal Government and the Bundestag must exercise their interdependent competences in accordance with the principle of good-faith cooperation between constitutional organs (Organtreue).

114

Finally, the Bundestag also influences the Federal Government’s European policy by way of the government’s accountability to Parliament (Arts. 63 and 67 Basic Law – cf. BVerfGE 68, 1 <109 f.>). The Bundestag’s say in the formation of other state organs (Kreationsfunktion) and the scrutiny it provides, which is in principle exercised in public hearings, prompts the public and political parties to engage with the Federal Government’s European policy and thus has an impact on citizens’ electoral decisions.

115

In the context of signing the Treaty on European Union, the Member State governments also highlighted the great significance of domestic parliaments within the European Union. In their declaration on the role of national parliaments in the European Union (BGBl 1992 II p. 1321), they emphasise the importance of encouraging greater involvement of national parliaments in the activities of the European Union and oblige the governments of the Member States to ensure that national parliaments receive Commission proposals for legislation in good time so as to allow for adequate review.

116

2. The Treaty on European Union satisfies the specificity requirements because it sets out the further course of implementation – that is, the possible use of the sovereign powers transferred – in a sufficiently foreseeable manner (cf. BVerfGE 58, 1 <37>; 68, 1 <98 f.>). This is the basis for parliamentary accountability regarding the act of approval. The complainant argues that, without further parliamentary orders giving effect to European law at the domestic level, the European Community might, in view of its far-reaching objectives, develop into a political union with sovereign powers that cannot now be foreseen. This concern has no basis in fact. The Treaty on European Union affirms the principle of conferral, which already applied to the European Communities before this Treaty (see a) below). This principle is not called into question by Art. F(3) of the Treaty on European Union, which does not grant the European Union the competence to decide on its own competences (see b) below). The possibilities of assigning further tasks and powers to the European Union and the European Community are restricted by a sufficiently specific framework (see c) below). Insofar as the Treaty addresses the development of a European monetary union, this too is set out in sufficiently foreseeable terms (see d), e) and f) below).

117

a) According to Art. B(2) of the Treaty on European Union, the objectives of the EU are to be achieved as provided in the Treaty and in accordance with the conditions and the timetable set out therein. Art. E of the Treaty on European Union provides that the European Parliament, the Council, the Commission and the Court of Justice may only act where and to the extent that a Treaty provision confers competences and powers upon them. Under Art. D of the Treaty on European Union, the European Council is limited to providing the EU with the necessary impetus for its development and defining the general political guidelines thereof. If legislative acts are necessary, these must be based on the existing Treaty provisions.

118

The opening of areas of activity to the European Communities has always been subject to the principle that the European Communities may only act as provided in the Treaty and in accordance with the timetable set out therein (Art. 3 EEC Treaty, now: Art. 3 EC Treaty; Art. 2 EAEC Treaty); such that it is not permissible to conclude that a task entails the existence of a certain power. This is not altered by the entry into force of the Treaty on European Union. The principle of conferral ([…]) is reaffirmed in Art. 4(1) second sentence of the EC Treaty and in Art. 3(1) second sentence of the EAEC Treaty, which provide that each Community institution acts within the limits of the powers conferred upon it by the Treaty; it is also reaffirmed in Art. 189(1) of the EC Treaty and in Art. 161(1) of the EAEC Treaty, according to which only legal acts of Community institutions within the limits of the Treaty are permitted. Other provisions that are unaffected by the Treaty on European Union are the first sentence of Art. 3 of the ECSC Treaty, which provides that Community organs perform their tasks within the limits of the powers entrusted to them, and Art. 5(1) of the ECSC Treaty, which provides that the European Community is to carry out their task in accordance with the Treaty, with a limited measure of intervention.

119

In addition to these established provisions, the new Art. 3a of the EC Treaty provides that with regard to the European Community’s future economic (section (1)) and monetary policy (section (2)), too, the European Community may only act as provided in the Treaty and in accordance with the timetable set out therein. Art. 4a of the EC Treaty extends this principle to the ESCB and the ECB, while Art. 4b of the EC Treaty extends it to the European Investment Bank.

120

Likewise, in its section (1), the new fundamental precept of Art. 3b of the EC Treaty affirms that the Community is to act within the limits of the powers conferred upon it by the Treaty and of the objectives therein assigned to it. The subsequent provisions enshrining the principles of subsidiarity (Art. 3b(2) EC Treaty) and of proportionality (Art. 3b(3) EC Treaty) serve to limit the exercise of competences. The European Council held in Edinburgh on 11 and 12 December 1992 emphasised, in an overall approach to the application of the principle of subsidiarity ([…]), that Art. 3b(1) of the EC Treaty determines strict limits for Community action. According to the statement by the European Council, the requirement that powers can only be assigned by the Treaties has always been a fundamental feature of the Community legal order; powers exercised by individual states are the rule, and powers exercised by the Community the exception.

121

Moreover, the EC Treaty makes clear distinctions as to the type and intensity of the powers granted. Arts. 105 to 109m of the EC Treaty map out the three-stage process towards a monetary union, setting forth its basic conditions and the expansion of tasks; the common economic policy, by contrast, is essentially limited to coordination (Art. 3a and Art. 102 ff. EC Treaty). In individual areas of activity (Art. 3(m), (n), (o), (p) and (s) EC Treaty), the Community is limited to ‘promotion’ or ‘contribution’; in these areas, Community measures are only permitted to strengthen cooperation between the Member States or support or complement their actions in the respective areas ([…]). The new Arts. 126 to 129 of the EC Treaty limit the EC’s activities for the areas of education, vocational training and youth, culture and public health to encouraging cooperation between the Member States and to lending support to their action; any harmonisation of the laws and regulations of the Member States is expressly excluded. In view of the specific objectives of these articles, such harmonisation measures may therefore not be based on Art. 235 of the EC Treaty ([…]).

122

b) Art. F(3) of the Treaty on European Union does not undermine or break with this framework. That said, the requirement of sufficient specificity of the sovereign powers assigned, and thus parliamentary accountability for the assignment of such powers, would be violated if Art. F(3) of the Treaty on European Union granted the European Union, as an association of sovereign states, a competence to decide on its own competences. However, Art. F(3) of the Treaty on European Union does not authorise the EU to acquire, on its own authority, the financial resources or other means which it considers necessary to attain its objectives. Rather, Art. F(3) of the Treaty on European Union merely expresses the political intent of the Member States forming the European Union to undertake the necessary means to equip it with sufficient resources. If European institutions were to interpret and apply Art. F(3) of the Treaty on European Union in a manner that is contrary to these contents, which are part of the German act of approval, such action would not be covered by the German act of approval and would thus not be binding within Germany. German state organs would have to reject any legal acts based on such an interpretation and application of Art. F(3) of the Treaty on European Union.

123

b 1) Art. F(3) does not grant the European Union the competence to decide on its own competences; this follows from the very fact that no part of the Treaty on European Union indicates agreement between the contracting parties that the European Union would be considered an independent legal entity equipped with its own competences. In the Federal Government’s view, the European Union does not have separate legal personality, either vis-à-vis the European Communities or vis-à-vis the Member States. Director-General Dewost confirmed this view in the oral hearing.

124

b 2) The wording of Art. F(3) of the Treaty on European Union, according to which the European Union provides ‘itself’ with the means necessary, also does not establish a competence of the European Union to decide on its own competences. The European Union provides ‘itself’ with the means necessary in the same way that it sets ‘itself’ objectives: The Treaty on European Union does not consider the European Union as an independent legal entity, but as a designation for the Member States acting collectively. It is these Member States that determine the objectives and means of the European Union.

125

b 3) An interpretation of Art. F(3) of the Treaty on European Union assigning a competence to the European Union to decide on its own competences would also run counter to the intent consistently expressed by the contracting parties to enshrine the principle of conferral in the Treaty and to clearly delimit individual provisions granting powers to the European Union. Were Art. F(3) of the Treaty on European Union understood as a basis for a competence on the part of the European Union to decide on its own competences, it would supersede the entire order of competences of the Treaty on European Union, including the Treaties establishing the European Communities, the subsequent Treaties, and the acts amending or supplementing these Treaties, rendering them largely meaningless. Art. M of the Treaty on European Union, which rules out any implicit modifications of the existing Treaties by the Treaty on European Union, also suggests that this is not a valid interpretation.

126

b 4) Deriving an EU competence to decide on its own competences from Art. F(3) of the Treaty on European Union would also run counter to the deliberate decision of the Member States not to integrate foreign and security policy or justice and home affairs into the supranational decision-making structure. If, for instance, the European Union could realise the objectives of Art. B second and fourth indent of the Treaty on European Union with its own sovereign powers, and could claim these powers by invoking Art. F(3) of the Treaty on European Union, then Art. K.9 of the Treaty on European Union, which makes even a simplified shift of competences to the European Communities for some parts of justice and home affairs subject to prior ratification by the Member States, would be rendered meaningless. Accordingly, with regard to building on the acquis communautaire, Art. B fifth indent of the Treaty on European Union provides that it must be considered in accordance with the procedure referred to in Art. N(2) – revisions of the Treaty requiring ratification – to what extent the policies and forms of cooperation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.

127

b 5) Finally, Art. F(3) of the Treaty on European Union lacks the procedural supplements that could make it a provision granting powers to the European Union. In the Community Treaties, provisions that grant powers to the European Union always transfer a specific right of decision-making to a specific institution while setting out a procedure for decision-making that includes, in particular, whether and to what extent other institutions participate in the process. The majorities necessary for decision-making are also generally laid down. Art. 235 of the EEC Treaty, which expands the competences of the Community, is an example of such a provision. Art. F(3) of the Treaty on European Union does not have the same structure.

128

[…]

129

b 6) Not only the Federal Government and the Bundestag, but also the Member States and the Commission of the European Communities share the legal view that the Treaty on European Union does not grant the European Union the competence to decide on its own competences. The Conclusions of the Presidency of the European Council in Edinburgh on 11 and 12 December 1992 do not merit a different assessment.

130-135

[…]

136

c) The Member States have set out objectives for the European Union in Art. B of the Treaty on European Union and determined that these may only be achieved as provided for in the Treaty. Moreover, they have defined the tasks and powers of the three European Communities and limited the European institutions to the exercise thereof (cf. Art. E Treaty on European Union and Art. 3b(1), Art. 4(1) second sentence, Art. 4a and Art. 4b EC Treaty). Any change or expansion of these tasks and powers requires prior and formal consent by the Member States; the possibilities of development of the law on the basis of the existing Treaty are limited (BVerfGE 75, 223 <240ff.>). Art. B fifth indent of the Treaty on European Union creates a link between the further development of the acquis communautaire and the procedure for Treaty amendments laid down in Art. N of the Treaty on European Union. In addition to the formal procedure for Treaty amendments enshrined in Art. N, the agreement of the Member States can, under particular Treaty provisions, also be declared in a simplified procedure (cf. in particular Art. K.9 Treaty on European Union, Art. 8e(2), Art. 201(2) EC Treaty). However, any Treaty change or expansion requires the Member States’ consent in accordance with their respective constitutional requirements. Art. 23(1) second sentence of the Basic Law requires a federal law for any further transfer of sovereign powers. Changes in the Treaty foundations or comparable provisions that change or amend the contents of the Basic Law or make such changes or amendments possible require the consent of two thirds of the members of the Bundestag pursuant to Art. 23(1) third sentence and Art. 79(2) of the Basic Law.

137

d) The Treaty on European Union is also in line with the requirements for accountability on the part of the Bundestag with regard to the steps of implementation therein provided for the development and existence of the European monetary union.

138

d 1) According to Title VI, chapter 2 of the EC Treaty, the monetary union is designed as a stability union, whose primary objective is to maintain price stability (Art. 3a(2), Art. 105(1) first sentence EC Treaty). Pursuant to Art. 109e(2)(a) second indent of the EC Treaty, each Member State will adopt, if necessary, multiannual programmes intended to ensure the lasting convergence necessary for the achievement of economic and monetary union, particularly with regard to price stability and sound public finances, before entering stage two. Pursuant to Art. 109e(2)(b) of the EC Treaty, the Council will assess the progress made with regard to economic and monetary convergence. Art. 109j(1) of the EC Treaty sets out the criteria for the further development of the economic and monetary union; these criteria are quantified in the Protocol on convergence criteria. Art. 6 of this Protocol provides that it is for the Council, acting unanimously, to lay down the details of the convergence criteria. The fulfilment of these convergence criteria is a prerequisite for the entry of a Member State into stage three of the monetary union.

139

d 2) Although it is not yet foreseeable how the monetary union will develop throughout its individual stages in terms of its economic significance, participating Member States and timelines, the Act of Approval of the Treaty on European Union satisfies parliamentary accountability requirements.

140

(1) The Treaty on European Union establishes an agreement under international law for an association of Member States that is designed to evolve. It depends on the Member States to fill the Treaty with life; the implementation and development of the Treaty must be supported by the will of the Member States. Art. N of the Treaty on European Union therefore provides that any Member State may submit proposals for the amendment of the Treaties, which will enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements. […] But the implementation of the applicable Treaties, too, relies on cooperation by the Member States. Given the interdependence of the monetary union agreed upon in the Treaties and the development towards an economic union that entails, the economic and monetary union provided for in Art. 102a ff. of the EC Treaty can only be achieved through the continued serious commitment of all Member States to its implementation.

141

In the context of this interdependence between the contents of the Treaties and the required convergences, the timeline for entry into stage three of the economic and monetary union (Art. 109j(4) of the EC Treaty) must be considered as a target rather than as a legally binding deadline. It is true that the Member States must make serious efforts to comply with the timeline set out in the Treaty. However, Director-General Dewost confirmed in the oral hearing that the setting of target dates, in line with established Community tradition, is aimed more at initiating and accelerating integration developments than at achieving them within the specified timeline under any circumstances ([…]).

142

The ECSC Treaty, too, leaves the further development of the European Union to the Member States. The ECSC Treaty is one of the foundations of the European Union according to Art. A of the Treaty on European Union; however, the ECSC Treaty will expire in 2002 pursuant to its own Art. 97, thus requiring a new agreement between the Member States.

143

(2) Furthermore, the obligation of the European Central Bank to pursue as its primary objective the maintaining of price stability (Art. 3a(2), Art. 105(1) EC Treaty), satisfies a particular constitutional duty of the Federal Republic of Germany [with regard to the commitment to price stability] as a Member State of the European Communities (Art. 88 second sentence of the Basic Law). This constitutional duty is significant within the European Community given that it is a legal community subject to a principle of sincere cooperation in accordance with Art. 5 of the EEC Treaty. The principle not only entails obligations for the Member States vis-à-vis the Community, it also obliges Community institutions to cooperate sincerely with the Member States (cf. Order of the Court of Justice of 13 July 1990, C-2/88, European Case Reports – ECR 1990 I, p. 3367). According to the explanation provided by Director-General Dewost in the oral hearing, this means that Community institutions will always take statements by the Member States that an act conflicts with their constitutional law into serious consideration and will try to find a solution that respects the constitutional law of the Member State.

144

(3) The intention of the Bundestag to reserve the option of making its own assessment for the transition to stage three of the economic and monetary union and thereby oppose any watering down of the stability criteria can be based in particular on Art. 6 of the Protocol, which provides that the specification of the convergence criteria referred to in the Treaty in deviation from the definitions of the Protocol requires a unanimous decision of the Council. This means, firstly, that the criteria laid down in Art. 109j(1) of the EC Treaty as such are not at the discretion of the Council, especially since the fundamental conception of the monetary union as a stability union (sixth recital of the Preamble of the Treaty on European Union, Art. 3a(2) and (3), Art. 105(1) EC Treaty) could otherwise not be realised. Secondly, it follows from Art. 6 of the Protocol on the convergence criteria that the assessment of the Council, which, pursuant to Art. 109j(2) of the EC Treaty forms the basis of the Council’s recommendations as to whether individual Member States fulfil the convergence criteria for the adoption of a single currency, cannot circumvent these criteria by simple majority decision. Rather, the majority requirement [laid down in Art. 109j(2) EC Treaty] can only mean that differences of opinion can be resolved by a majority within the remaining margin of appreciation, assessment and prognosis. The same holds true regarding the requirement that the Council, meeting in the composition of the heads of state and government, must base its majority decisions on these recommendations pursuant to Art. 109j(3) and (4) of the EC Treaty. The margin of appreciation, assessment and prognosis of the Council notwithstanding, the Treaty does not allow the Council to depart from its recommendations pursuant to Art. 109j(2) of the EC Treaty – the basis for decision-making –, and thus from the convergence criteria laid down in Art. 109j(1) of the EC Treaty and defined in detail in the Protocol on the convergence criteria. This sufficiently ensures that any watering down of the convergence criteria would be subject to German consent and thus the decisive involvement of the Bundestag.

145

(4) In addition, the Protocol on the transition to the third stage of economic and monetary union recognises that the irreversible transition to the third stage is dependent on ‘preparatory work’ of the Member States concerned. This preparatory work is also subject to a Member State’s national constitutional law and may require a parliamentary decision in the Member State ([…]). In this regard, too, the Bundestag can give effect to its intent of only allowing the establishment of the future monetary union subject to strict stability criteria […].

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(5) In ratifying the Treaty on European Union, the Federal Republic of Germany is not subjecting itself to an unmanageable march towards a monetary union, the course of which can no longer be controlled. Rather, the Treaty paves the way for gradual further integration of the European legal community. In each further step, such integration depends either on conditions currently foreseeable for Parliament or on further approval by the Federal Government that can be influenced by Parliament.

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e) The development of the monetary union is set out in foreseeable terms, including upon entry into the third stage; it thus satisfies parliamentary accountability requirements. The Treaty on European Union provides that the monetary union is to be committed to long-term stability and in particular guarantee monetary stability. It cannot be foreseen whether the stability of an ECU currency can be guaranteed in the long term on the basis of the safeguards set out in the Treaty. However, the concern that the efforts to create stability might fail, which could then result in further fiscal concessions by the Member States, is not sufficiently tangible to lead to the conclusion that the Treaty is unspecific in legal terms. The Treaty imposes long-term conditions that make the objective of stability the primary metric of the monetary union. These conditions aim to ensure that this objective is achieved through institutional safeguards and – as a last resort, in the event that the stability union fails – do not preclude an exit from the union. Pursuant to Art. 105(1) of the EC Treaty, the ESCB is primarily to guarantee price stability. In carrying out its tasks pursuant to Art. 107 of the EC Treaty, the ECB is independent. It follows from the sixth recital of the Preamble of the Treaty on European Union that the Member States are resolved to establish an economic and monetary union that is based on a stable currency. Art. 2 of the EC Treaty provides that the tasks of the European Community include the promotion of sustainable and non-inflationary growth and a high degree of convergence of economic performance. According to Art. 3a(2) of the EC Treaty, the primary objective for the adoption and implementation of the single monetary policy and exchange rate policy provided for in the Treaty is price stability. Moreover, the EC Treaty ensures that the Member States support and promote the stability of the European currency through their economic policies. Art. 3a(3) of the EC Treaty provides that the activities of the Member States, too, must be guided by stable prices, sound public finances and monetary conditions and a sustainable balance of payments (cf. also Art. 102a second sentence EC Treaty). Member States’ economic policies are declared a matter of common concern and their broad guidelines are coordinated and monitored by Council recommendation (Art. 103 EC Treaty). Art. 104 of the EC Treaty prohibits national central banks from granting overdraft facilities or any other type of credit facility to public bodies or public undertakings of the Member States and from purchasing debt instruments directly from them. Public bodies or public undertakings of the Member States may not receive privileged access to financial institutions, except for oversight purposes (Art. 104a EC Treaty). Given that Art. 104b of the EC Treaty precludes the Community and other Member States from being liable for or assuming the commitments of public bodies or public undertakings of any Member State, a Member State cannot simply shift the consequences of irresponsible fiscal policy to others. Art. 104c of the EC Treaty, in conjunction with the Protocol on the excessive deficit procedure, obliges Member States to avoid excessive government deficits and provides for monitoring in this regard by the Commission. The Council can decide, based on a Commission opinion, that an excessive deficit exists and work towards bringing that situation to an end.

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This conception of the monetary union as a stability union is the basis and subject matter of the German act of approval. If the monetary union were unable to further develop the requisite stability for entry into stage three in line with the agreed remit for stability, it would depart from the conception laid down in the Treaties.

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f) Finally, the material link between the monetary union and the economic union does not render the Treaty unspecific. There may be plausible reasons for the argument that a monetary union can only be implemented in terms of practical policy in a meaningful way if it is accompanied in the near future by an economic union that goes beyond the coordination of the economic policy of the Member States and the Community. However, such a complementary economic union would require Treaty change pursuant to Art. N of the EC Treaty, and could thus only be implemented with parliamentary approval. It is therefore presently unclear whether the monetary union will result in such an economic union, or whether a lack of commitment on the part of the Member States to an economic policy under the framework of the Community and the ‘dominant budget’ of the Community associated therewith ([…]), will necessitate a future renunciation of such a monetary union and corresponding changes to the Treaties.

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Moreover, important voices point out that an economic union, especially between states which are based upon an active economic and social policy, ultimately can only be realised in conjunction with a political union that encompasses all essential tasks relating to public finances, and not independent of such a political union or as a mere preliminary stage towards political union. The President of the Bundesbank, Prof. Dr. Schlesinger, likewise took this view in the oral hearing. […]

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This, however, is a political issue, not one of constitutional law. It is a political decision to agree on and implement a monetary union without simultaneously establishing a political union or doing so shortly thereafter, and it is the designated institutions that are politically responsible for this decision. If it turns out that the envisaged monetary union cannot be realised without a political union (which is not yet envisaged), a new political decision will be needed on how to proceed. There is room for such a decision within the law, because according to the present Treaty, the monetary union entails neither a political union nor an economic union; these would require Treaty change, which is impossible without a decision of the national state organs, including the Bundestag. The national state organs must then assume political responsibility for such a decision – within the limits of what is constitutionally permissible.

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3. The transfer of tasks and powers to European institutions provided for in the Treaty on European Union still ensures that the Bundestag retains tasks and powers of substantial political significance. The Treaty also sets sufficiently reliable limits to the momentum of the further integration envisaged by it, which strike a balance between executive decision-making within the European association of sovereign states and the decision-making as well as co-decisional rights of the Bundestag.

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a) It is true that the influence of the Bundestag, and thus of voters, on the exercise of sovereign powers by European institutions is almost completely restricted with regard to the European Central Bank, which is independent vis-à-vis the European Community and the Member States (Art. 107 EC Treaty). Thus, an essential policy area – which protects individual freedom by ensuring monetary stability and which governs public finances and the policy areas depending on it by controlling the money supply – is beyond the reach of the directly and democratically legitimated representatives of the people and, at the same time, beyond the reach of legislative scrutiny with regard to the tasks and means used. An independent central bank involves the separation of most monetary policy tasks from state authority, which removes direct parliamentary accountability at the national or supranational level with the aim of ensuring that the monetary system is beyond the reach of interest groups and political representatives interested in re-election ([…]).

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This restriction on the democratic legitimation derived from voters in the Member States affects the principle of democracy; however, since this modification of the principle of democracy is provided for in Art. 88 second sentence of the Basic Law, it is compatible with Art. 79(3) of the Basic Law. The amendment to Art. 88 of the Basic Law made in view of the European Union allows for a transfer of powers from the Bundesbank to a European Central Bank if such transfer ‘is in line with the strict criteria set out in the Maastricht Treaty and in the Statute of the European System of Central Banks with regard to the central bank’s independence and the priority given to monetary stability’ (Recommendation for decision and report of the special committee ‘European Union [Maastricht Treaty]’ of 1 December 1992, BTDrucks. 12/3896 p. 21). It is thus evident that the Constitution-amending legislator intended to create a constitutional basis for the monetary union provided for in the Treaty on European Union, but also intended in this case to limit the associated transfer of powers to institutions that are independent in the manner set out above. This modification of the principle of democracy in the service of ensuring confidence in a currency is acceptable, since it is a reflection of a special characteristic – that has been proven within the German legal order and is also supported by research – that an independent central bank can be a better guarantor of monetary stability, and thus of the general economic foundations of fiscal policy and private planning and arrangements in the exercise of economic freedoms, than state institutions that depend on the money supply and monetary value for their ability to act and are dependent on short-term approval by political forces. Therefore, entrusting the competence for monetary policy to an independent European Central Bank that is thereafter not subject to state authority – an authorisation that cannot be applied to any other policy area – satisfies the constitutional requirements subject to which the principle of democracy may be modified (cf. BVerfGE 30, 1 <24>; 84, 90 <121>).

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b) Moreover, the tasks and powers of the European Union and the European Communities in the Treaty, and thus in the German act of approval, are circumscribed as set out above. It follows that the far-reaching objectives laid down in the Preamble and in Art. B of the Treaty on European Union do not serve to justify the exercise of sovereign powers, but reaffirm the political intent of achieving an ever closer union among the peoples of Europe. The Treaty on European Union therefore satisfies the requirement, arising from ever closer integration, to not only specify the aims of the actions of European institutions, but also to define the means that may be used to achieve these aims and thereby circumscribe the substance of the tasks and powers.

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The Treaty on European Union, and in particular the EC Treaty, observe the principle of conferral (see 2. a) above). While this principle does not preclude the interpretation of an individual provision transferring tasks or powers in light of the objectives of the Treaties, the objectives in themselves are not sufficient to create or expand tasks and powers ([…]). Moreover, the Treaty on European Union, in expressly setting forth the requirement of Treaty amendment (Art. N) or Treaty expansion (Art. K.9), clearly reflects the distinction between the development of the law within the Treaties on the one hand (regarding judicial development of the law, cf. BVerfGE 75 ,223 <240 ff.>) and, on the other, law-making that goes beyond these limits and is not covered by the applicable Treaties. Art. 23(1) of the Basic Law follows this standard: it requires an act of approval for changes in the Treaty foundations of the European Union and comparable regulations.

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This distinction is also significant for the future handling of conferred powers, given that the Founding Treaties of the European Communities grant circumscribed sovereign powers to the Communities, but also provide for the possibility of Treaty change – in an ordinary and a simplified revision procedure. Until now, a dynamic expansion of the existing Treaties could be based on a generous handling of Art. 235 of the EEC Treaty in the sense of ‘dispositive powers’, following from the notion of implied powers of the European Communities and on Treaty interpretation that made the greatest possible use of Community powers (effet utile) ([…]). Yet when Community institutions interpret provisions granting them powers in the future, they will have to take into account that the Treaty on European Union makes a general distinction between the exercise of limited sovereign powers transferred to these institutions and Treaty change, and that its interpretation therefore cannot be tantamount to an expansion of the Treaty. Such an interpretation would not be binding on Germany.

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c) The principle of conferral is reflected in and circumscribed by the principle of subsidiarity. For the European Community, the principle of subsidiarity is enshrined in Art. 3b(2) of the EC Treaty. As reference is made to this principle in the last section of Art. B of the Treaty on European Union, the principle of subsidiarity is extended to the policies and forms of cooperation set forth outside of the EC Treaty and is also reiterated in Art. K.3(2)(b) of the Treaty on European Union. In addition, individual conferred powers, such as the ones in Art. 126, Art. 127, Art. 128, Art. 129, Art. 129a, Art. 129b, Art. 130 and Art. 130g of the EC Treaty, limit Community activities to the complement of policies of the Member States, which in principle take precedence.

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The principle of subsidiarity does not give rise to powers of the European Communities, but limits the exercise of powers granted elsewhere ([…]). According to Art. B(2) of the Treaty on European Union, the objectives of the European Union can only be achieved in accordance with the conditions and the timetable set out therein and must also respect the principle of subsidiarity. In line with this provision, Art. 3b(1) of the EC Treaty states as a central prerequisite that the European Community must act on the basis of the powers conferred on it by the Treaties, the exercise of which is then bound by the principle of subsidiarity in accordance with Article 3b(2) of the EC Treaty.

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This means that in cases where the Treaty confers a power upon the European Community, the principle of subsidiarity determines whether and in what way the European Community may act. If the Community legislator wants to exercise a legislative power conferred upon it, it must first ascertain – and demonstrate in a comprehensible manner in accordance with Art. 190 of the EC Treaty – that the aims of the action in question cannot be sufficiently achieved by the Member States at national level. This must then be capable of justifying the further conclusion that the aims can, by reason of the scale or effects of the action, be better achieved at Community level.

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The principle of subsidiarity, adherence to which is monitored by the Court of Justice, serves to ensure that the Member States retain their national identity and their powers ([…]). In addition to the jurisprudence of the Court of Justice, which is bound by the principle of subsidiarity, it is the practice of the Council, as the main legislative body, that determines to what extent an erosion of Member State competences, and thus a vitiation of the tasks and powers of the Bundestag, are counteracted by the principle of subsidiarity. In this regard, the Federal Government must use its influence to bring about a strict application of Art. 3b(2) of the EC Treaty, and thereby fulfil the constitutional duty incumbent upon it under Art. 23(1) first sentence of the Basic Law. For its part, the Bundestag can influence the practice of the Council, advocating adherence to the principle of subsidiarity, by way of its participation rights following from Art. 23(3) of the Basic Law regarding internal German decision-making. The Bundestag, too, thus fulfils a constitutional duty incumbent upon it under Art. 23(1) first sentence of the Basic Law. It can also be expected that the Bundesrat will defend the principle of subsidiarity ([…]).

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d) Art. 3b(3) of the EC Treaty sets out the principle of proportionality as the third fundamental principle of the Community. This principle encompasses a prohibition of excessive measures (Übermaßverbot) arising from fundamental rights, but in an association of sovereign states, which is not organised as a state, it can also restrict the intensity and scale of Community actions to give effect to the obligation enshrined in Art. F(1) of the Treaty on European Union, and thus protect Member States’ national identities and the tasks and powers of national parliaments from excessive European rules. Unlike the principle of subsidiarity in the strict sense laid down in Art. 3b(2) of the EC Treaty, the principle of proportionality enshrined in Art. 3b(3) of the EC Treaty applies to all measures of the Community, regardless of whether they are based on ‘exclusive’ or other competences of the Community.

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4. Ultimately, the Treaty on European Union confers limited powers on the institutions and bodies of the three European Communities, the exercise of which is subject to a differentiated framework setting out permissible means and their intensity and scale. The Treaty confers sovereign powers that are sufficiently specific in legal terms; Parliament can be held accountable for this [transfer], which is consequently democratically legitimised. The further development of integration that the Treaty on European Union and the Treaty Establishing the European Communities envisage does not derive from general objectives, but from specific tasks and powers.

D.

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The Treaty of Maastricht grants European institutions more fundamental tasks and powers, particularly through the expansion of EC competences and the inclusion of monetary policy, which is not yet supported by a strengthening and expansion of the democratic foundations in the Treaties. It creates a new stage of European integration that, according to the contracting parties, is intended to further enhance the democratic and efficient functioning of the institutions (Preamble, fifth recital). In light of this, democracy and efficiency cannot be separated from one another; the strengthening of the democratic principle is also expected to improve the functioning of all Community institutions. At the same time, Art. F(1) of the Treaty on European Union provides that the European Union respects the national identities of its Member States, whose systems of government are founded on democratic principles. In this respect, the European Union safeguards the democratic foundations of the Member States and builds upon them.

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Any further development of the European Union can only occur in this context. The Constitution-amending legislator reflected this fact by inserting Art. 23 into the Basic Law in view of this Treaty, which expressly provides for the development of the European Union that is committed to democratic, social and federal principles, to the rule of law and to the principle of subsidiarity. It is therefore essential, both from the perspective of the Treaties and from a constitutional law perspective, that the development of the democratic foundations of the European Union keeps pace with European integration and that Member States maintain lively democracies in the course of further European integration.