Court cases against Lisbon?

In an email from Jens-Peter Bonde (posted in the FB group) JP Bonde called for court cases to be started in all EU countries against the Lisbon treaty. See that email here.

Do you know any lawyers in your country? Do you have any connections? See what YOU can do!

If you want to read JP Bonde’s email, please click below.

ADDRESS
 
DATE
 
Dear Colleagues,
 
LAST CHANCE TO STOP THE TRANSFER OF POWERS
FROM VOTERS TO THE EXECUTIVE IN THE EU
 
 
On Tuesday 27 October 2009 the Czech Constitutional Court will approve the Lisbon Treaty, probably on a 5-4 vote.
 
The European Council summit will then implement the Treaty on 29-30 October, possibly by appointing Mr Tony Blair as the first  non-elected President of Europe. Commission President Barroso will have obtained the green light for his new Commission team, including the new EU foreign minister.
 
The summit meeting will not  respect the Constitution of the Czech Republic and wait for the signature of its President.
 
EU summits have a long record of breaching proper democratic procedure  in the lead-up to the ratification of the Lisbon Treaty. The EU Prime Ministers and Presidents ignored the rejection of the EU Constitution  by the French and Dutch peoples in their 2005 referendums. Instead they repackaged the Constitution in the form of the Treaty of Lisbon and agreed to cancel all referendums on it except the Irish one, which they could not stop.
 
In the second Irish referendum they bullied the Irish into voting Yes to a Treaty which most of them still oppose, as do most Europeans. In the re-run referendum in Ireland voters were effectively  asked to vote on membership of the European Union rather than on the Lisbon Treaty. 
 
In Dublin before the referendum there was not one single Yes-side poster that dealt honestly with the actual contents of the Treaty.  All the advertising was in favour of EU membership, or related to Ireland being supposedly marginalised or isolated in the EU if it rejected the Treaty again, as if that were the central issue before voters.
 
The Irish Government, the Irish Referendum Commission and the European Commission had an agreed strategy to lie to Irish voters about the Treaty and misrepresent what was at stake. 
 
The Government and the Referendum Commission breached Irish law by sending partisan information to all households. The European Commission breached European law by interfering in the Irish debate with 16-page inserts in all Sunday newspapers before the referendum. The major political parties in the European Parliament breached both European and Irish law by interfering in the campaign with partisan  advertising and misleading messages.
 
If the Lisbon Treaty comes into force it will be born in democratic sin. We will have no more referendums on Treaty amendments. The executive arm of government represented by Ministers and civil servants  will take over from the voters right acoss Europe and the role of voters in the European Union will be drastically diminished compared to the role they traditionally have played in parliamentary democracies.
 
That is why we call on you to make one last effort to help stop this Treaty – now.
 
Our last hope is to have some national Courts repeat the German Constitutional Court verdict of 30 June last in order to win democratic concessions for National Parliaments at national level,  which would  hopefully gain enough time to allow a British referendum on the Treaty to be held next summer.
 
June 3rd 2010  is the last possible date for a general election in the UK. The Conservative Party, which is ikely to be elected to office,  has promised to withdraw Britain’s ratification of the Treaty and hold a referendum  on it in the United Kingdom, in which the new Government will advocate a No. Prime Ministers Blair and Brown both promised referendums before the last British general election, but they broke that promise, so that the British people have been denied a say in this most important issue that will influence their future as well as that of the whole of Euorpe.
 
We have a moral right and a democratic duty to make a last effort to stop the undemocratic Lisbon Treaty and the EU Constitution that it embodies. We therefore submit to you herewith a proposal for the initiation of immediate Court actions in as many EU countries as possible based on the judgement of the German Constitutional Coourt of 30 June last.
 
The aim of such actions would be to seek Court orders requiring National Parliaments to set in place parliamentary controls on how Government Ministers might implement various options and discretions contained in the Treaty of Lisbon, similar to those which the German  Constitutional Court  laid down as being necessary in Germany to safeguard fundamental democratic values before the Treaty could be ratified, and which were embodied in special legislation in the Federal Republic in September.
 
Below is a link to the judgement of the German Constitutional Court given in both  English and German, together with different briefings and a link to a readable version of the Lisbon Treaty with a 3000-word alphabetical Index.
 
 –  Please send your comments and reactions to this proposal to: jp@bonde.dk
 
–  Please send the names of lawyers or other appropriate personalities in your country  who might assist in bringing such a case before  your national Court as a matter of urgency.
 
With Kind regards
 
Anthony Coughlan
President, Foundation for EU Democracy
 
Jens-Peter Bonde, MEP 1979-2008
Vice President, Foundation for EU Democracy
Tel. 0032 – 47 31 32 322
 
_________
DRAFT OUTLINE COURT SUBMISSION
_____________

 
On 30 June 2009 the German Constitutional Court in Karlsruhe, Germany, requested the German Government to stop the ratification of the Lisbon Treaty until the German Bundestag and Bundesrat first of all agreed a range of measures that would safeguard what the Court set out as the fundamental values of democracy and  the democratic rights of German voters and the German legislature as regards:
 
1)  The future possible use of passerelles and flexibility clauses in the Lisbon Treaty, as under Art. 48.7 TEU, Art. 352 TFEU and other articles;
 
2)  The day-to-day handling of EU affairs, including the maintenance of a continuing vibrant national parliamentary democracy in relation to decision-making in matters such as defence, criminal law, social and financial affairs, education, culture, media and religion.
 
In September the German Bundestag and Bundesrat adopted legislation implementing the measures required by the German Constitutional Court, setting in place parliamentary controls over the exercise by German Government Ministers of various options and discretions they are given in the implementation of the provisions of the Lisbon Treaty.   
 
It remains to be seen whether these legislative measures fully fulfil the requirements of the Constitutional Court. Further court cases have been set in train in Germany seeking to establish more thorough parliamentary scrutiny of EU measures and of the actions of Ministers in implementing the Treaty of Lisbon with a view to  maintaining the democratic right of voters to change the laws affecting them – that being the most fundamental democratic value of all in the view of the Court.
 
 
Our (***insert name of country***)  Constitution is founded on the same principle of democracy as the German Constitution. We therefore ask the Court to judge whether the principle of democracy set out in our Constitution is satisfactorily safeguarded in the Treaty of Lisbon and in the national law permitting Government Ministers to exercise the options and discretions set out in the Treaty, as well as in the other provisions of the Treaty which permit its supranational provisions to prevail over our own democratic institutions.
 
We base this request on the following considerations:
 
1)  The monopoly by non-elected EU Commissoners of the right to propose the great majority of EU laws that bind us is in fundamental conflict with the principle of democracy.  We submit that the European Commission must be accountable to the Council, the European Parliament, the National Parliaments or to voters directly before it can be allowed to administer powers that properly belong to voters and their elected representatives. We submit that the power to propose laws is an essential part of the Legislative arm of government and cannot be transferred to the Executive arm without amending our own Constitution accordingly.
 
 
2)  The practise of legislating and preparing the final drafts of many laws at EU level in hundreds of secret working groups under the Council of Ministers conflicts with the principle of parliamentary democracy, which requires that laws are adopted by elected members of Parliament who are responsible to the voters that elect them,  or else by the voters directly in referendums. This democracy principle requires that the power to legislate and to delegate regulatory competence should be moved to the National Parliaments or/and the European Parliament.
 
 
3)  Laws at EU level must be decided in transparent ways such that voters are able to follow their preparation and negotiation at least as well as they can follow the detailed course of the legislative function in National Parliaments. The principle of democracy requires that the transfer of powers from the member states to the EU should not result in less legislative transparency than exists at present.  Ideally there should be more transparency rather than less. We request therefore that the Government and Parliament should be instructed to require that openess and transparency in all legislative meetings and access by the public to all legislative documents be the basic rule for EU law-making, so that derogations from this principle are only permitted if they are properly decided by elected members of either the European Parliament or National Parliaments.
 
 
We do not request the Court to decide how to overcome the well-recognised democratic deficit that is made greater by the Lisbon Treaty. We request it rather to rule that the EU’s democratic deficit has to be diminished  by appropriate legislative measures at national level, as the German Constitutional Court has required for Germany. The lack of democracy in the legislative process at EU level must become the rare exception,  based on limited and explicit derogations,  rather  that the principal rule for deciding laws that are binding on our citizens.
 
 
The essence of democracy is that people can  hold elections, have a new parliamentary majority and then make new laws based on that. This core principle must also exist at European level unless European laws are adopted subject to confirmation by our National Parliament.
 
 
The Government and Parliament are asked to withdraw or suspend the State’s ratification of the Treaty of Lisbon pending the institution of such parliamentary controls so as to safeguard fundamental democratic values,  or else speedily to bring forward national or/and European legislation to safeguard the democracy principle in law-making and to respect the division of powers between legislative, executive and judicial authorities pending the coming into force of the Treaty of Lisbon for all 27 EU member states.
 
 
./. Essential excerpts from the German Constitutional Court judgement, with a short briefing note from Jens-Peter Bonde
 
./. Link to the Lisbon Treaty, updated second edition, with its 3000- word index
 
./. The German Constitutional Court judgement of 30 June in English
 
./. Same in German
./. Different longer Briefings from competent and critical lawyers
 
________
Some notes on the German Constitutional  Court judgement
________
 
 
On 30 June 2009 the German Constitutional Court in Karlsruhe, the “Bundesverfassungsgericht”,  published a radical verdict on the relations between National Parliaments and  the process of European integration. German ratification of the Lisbon Treaty was approved in principle by the Cort,  but criticised in practise.
 
The German national Parliament was then asked to pass national legislation to safeguard the influence of the Bundestag and Bundesrat on the implementation of the Treaty before Germany could legally ratify it.
 
The Court would not accept that the German Government on its own could use the flexibility clause in Art. 352 TFEU or the simplified Treaty amendment procedure in Art. 48.6 TEU to widen EU cooperation,  nor the “passarelles”  that wouod lead to the abolition of unanimity voting in wide areas of the Tretay in the future.
 
For these constitutional changes the German Court insisted on a positive decision in the German Parliament each time. It also insisted on national parliamentary participation in the many new areas where the Lisbon Treaty introduced majority voting.
 
The Court did not accept the fact that giving more powers to the European Parliament was  sufficient compensation for voters to overcome the inherent democratic deficit that arises when powers are moved from the national  level to the supranational. The Court also insisted on maintaining national sovereignty and a national “living democracy” in such key political areas as citizenship and fundamental rights, social and financial policy, legislation on criminal matters, civil and family law, relations with the churches, and defence.
 
The Court implicitly rejected core constitutional elements of the Lisbon Treaty.
 
It laid down that the primacy of EU law would only be accepted as long as the European institutions respect their delegated competences. In the Court judgement German citizens and companies are invited to go to the Constitutional Court if they find that the EU has legislated – or  made judicial decisions – outside the policy areas that have been explicitly delegated to the EU.
 
The Court implicitly rejected Art. 344 TFEU, which gives the monopoly of adjudicating  on interpretations of EU law to the European Court of Justice in Luxembourg, as well as Declaration No 17 on the primacy of EU law.
 
In September the German Parliament passed the required legislation to allow German President Köhler to sign the letter of ratification which was then sent to Italian President Napolitano for deposit with the other instruments of ratification of the EU Treaties in Rome.
 
The German Court cases were intiatated by different citizen groups,  as well as by the Left party, “Die Linke”, and German MP Peter Gauweiler of the Bavarian CSU party. The CSU party then called for far-reaching reforms of the relation between the German Länder Parliaments and the EU.
 
The Court ordered the plaintiffs’ costs to be partly paid by the state. The verdict was heavily criticised by former German foreign minister Joschka Fischer and others.
 
Here you can find a comment published in euobserver.com on the verdict and numerous quotes from the official English translation from the Court.
 
_________
 
 
German Constitutional Court implies most Lisbon ratifications are unlawful
by Jens-Peter Bonde  (MEP 1979 – 2008; member of the Convention on the Future of Europe)

The German Constitutional Court issued a remarkable verdict on 30 June in Karlsruhe. Leading German CDU politicians knew the result before it was published. It was described in the press as the Court’s approval of the ratification of the Lisbon Treaty.

This was mere spin. A careful reading of the judgement shows that it is a fundamental rejection of the core constitutional content of the Treaty.

The Court judgement modifies the most important principle of the primacy of European law. The Member States are stated to be the “masters of the Treaties”.  In the Court’s view the EU institutions have no powers on their own account. They can only administer delegated competences in prescribed areas.  European law is stated to be ultimately based on and limited by the accession law of each Member State.

The German Court implicitly invites any citizen, political party or business firm in Germany to take court cases before the German Constitutional Court if they find that a piece of proposed EU law is outside those delegated competences. Then it is the German Court will decide – not the EU Court.

This is a rejection of Art. 344 of the Treaty on the Functioning of the European Union, which provides that Member States undertake not to submit a dispute concerning the intepretation or application of the Treaties to any method of settlement  other than the European Court of Justice.

The Karlsruhe Court also insists that there must be important areas of law-making and decision-taking left to the EU Member States. This is an invitation to politicians everywhere to ask their governments what competences are left with the Member States after the adoption of the Lisbon Treaty.
 
I have offered a bottle of first-class wine to anyone who can give me just one example of a national law which cannot be touched  in some way by the Lisbon Treaty. Legal specialists have tried to find examples; yet they cannot!

If the EU governments cannot find room for the exercise of a meaningful national parliamentary democracy within the ambit of the  EU, then  the Lisbon Treaty is unconstitutional,  according to the German Court.

The Court does not accept that the European Parliament is a body which can give adequate democratic legitimacy to European  Union law. The Court also sets limits to the importance of the new “additional” Union citizenship and states that this can only  be supplementary to national citizenship.

The Court insists on national parliamentary participation in all areas where Member States would lose  their right of veto.

The judges unanimously insist, by 8 votes to nil, on prior approval by the German Parliament – and implicitly by other National Parliaments – for the use of the so-called “bridge articles” whereby Government Ministers on the Council of Ministers or the European Council can alter EU law-making from unanimity to qualified majority voting.

The judges also require full participation of National Parliaments in the use of the flexibility clause in Art. 352 TFEU, which permits the EU to take action and adopt measures to attain one of the  EU’s objectives even if the Treaties have not provided the necessary powers.
 
Finally, the Court forbids the German President from signing the Treaty so as to enable Germany’s instrument of rartication to be deposited in Rome unless and until the German Parliament has adopted  a law which would safeguard the involvement of the German Bundestag and Bundesrat in future EU decision-making.

The most striking element  in the judgement is that the Court implies the need for  the involvement of National Parliaments in all  aspects of EU law-making. They refer to democracy as being a principle common to all the EU Member States. The involvement of National Parliaments  in EU law-making is therefore a necessity. If not,  the principle of democracy will have been fundamentally breached.

The Karlsruhe Court effectively finds that the Lisbon Treaty would increase the EU’s widely acknowledged democratic deficit if its ratification is not linked to the adoption of internal procedures at Member State level such as to safeguard the involvement of the National Parliaments and voters in each Member State.
 
The verdict applies only to Germany of course.  But it has significant implications for all EU Member States, including those that have already approved and ratified the Lisbon Treaty. With this Court case in hand political parties and groups of citizens in each Member State are implicitly invited to go to their National Parliaments and insist on similar guarantees being given in order to ensure the involvement of elected representatives and voters in EU decision-making in each one.
 
If Germany’s ratification of the Lisbon Treaty is found to be illegal  and in contravention of basic democratic principles in the absence of such parliamentary controls, should not the same principle apply in  all other Member States that claim to be democracies?

The Karlsruhe judgement should inspire people to call for similar constitutional  and parliamentary challenges in other EU countries. This may establish strengthened procedures for national parliamentary control and safeguard areas where national parliamentary democracies can decide things on their own without interference from, for example, the EU Court of Justice.

Such calls may also win time to make people aware of the anti-democratic character of the Lisbon Treaty and ensure that this is  not ratified by all EU States before it has been approved by Irish voters in their referendum  re-run on  2 October next, and can be put later before British voters in a referendum in the United Kingdom.
 
The United Kingdom must have a general election before June next year. The Conservative Party, which  is likely to win that election, is pledged to withdraw the United Kingdom’s ratification of the Lisbon Treaty on its first day in office if the Treaty has not come into force by then for all 27 EU States.   It is then pledged  to hold a referendum on it and  to recommend a No vote to the British people.
 
There needs to be a democratic review of the Lisbon Treaty in all EU countries before any such encounter with UK voters.
 
_______
 
Excerpts from the German Constitutional Court judgement in the English version published by the Court, 30 June 2009.
 
“European unification on the basis of a union of sovereign states under the Treaties may not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life.” (Headnotes to the Judgement, Par. 3)
 
 
“It is therefore constitutionally required not to agree dynamic treaty provisions  with a blanket character or if they can still be interpreted in a manner that respects national responsibility for integation, to establish, at any rate, suitable national safeguards for the effective exercise of such responsibility.”  (Par.239)
 
 
“… retain sufficient space for the political  formation of the economic, cultural and social circumstances of life.  This applies in particular to areas which shape the citizens’ circumstances of life, in particular the private space of their own responsibility and of political and social security, which is protected by the fundamental rights, and to political decisions that particularly depend on previous understanding as regards culture, history and language and which unfold in discourses in the space of a political public that is organised by party politics and Parliament.  Essential areas of democratic formative action comprise, inter alia, citizenship. the civil and military monopoly on the use of force, revenue and expenditure including external financing and all elements of encroachment that are decisive for the realisation of fundamental rights, above all as regards intensive encroachments on fundamental rights such as the deprivation of liberty in the administration of criminal law or the placement in an institution.  These important areas also include cultural issues such as the disposition of language, the shaping of circumstances concerning the family and education, the ordering of the freedom of opinion, of the press and of association and the dealing with the profession of faith or ideology.” (Par. 249)
 
 
“Consequently, the Treaty of Lisbon does not alter the fact that the Bundestag as the body of representation of the German people is the focal point of an interweaved democratic system.” (Par. 277)
 
 
“the European Parliament is not a body of representation of a sovereign European people.”  (Par.280)
 
 
“The deficit of European public authority that exists when measured against requirements on democracy in states cannot be compensated by other provisions of the Treaty of Lisbon and to that extent, it cannot be justified.”  (Par.289)
 
 
“As regards the legal situation according to the Treaty of Lisbon, this consideration confirms that without democratically originating in the Member States, the action of the European Union lacks a sufficient basis of legitimisation.” (Par.297)
 
 
“Finally, the Treaty of Lisbon does not vest the European Union with provisions that provide the European union of integration (Integrationsverband) with the competence to decide its own competence (Kompetenz-Kompetenz).” (Par.322)
 
 
“With Declaration No.17 Concerning Primacy annexed to the Treaty of Lisbon, the Federal Republic of Germany does not recognise an absolute primacy of application of Union law, which would be constitutionally objectionable, but merely confirms the legal situation as it has been interpreted by the Federal Constitutional Court. . .” (Par. 331)
 
 
“After the realisation of the principle of the sovereignty of the people in Europe, only the peoples of the Member States can dispose of their respective constituent powers and of the sovereignty of the state. Without the expressly declared will of the peoples, the elected bodies are not competent to create a new subject of legitimisation, or to deligitimise the existing ones, in the constitutional  areas of their states.” (Par. 347)
 
 
 
________
 
Full Court verdicts at:
 
http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg09-072en.html

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