Bulletin n. 2/2011
October 2011
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Häberle Peter
    Das retrospektive Lissabon-Urteil als versteinernde Maastricht II-Entscheidung
    in Jahrbuch des öffentlichen Rechts der Gegenwart , Band 58, 2010 ,  2010 ,  317-337
    The Author gives a commentary, from a critical point of view, about the Lisbon Decision of the Federal Constitutional Court (FCC). He begins by taking into account the controversy provoked by the Decision in Germany both on the doctrinal and political levels. After that he goes on to point out the positive and negative profiles of the Decision. Referring to the positive aspects he mentions the consideration of comparative Law, the inference of the democracy principle from human dignity, the invocation of the “European common” constitutional traditions and the use of the concept of “responsibility for integration” among other questions. Referring to the negative aspects –which leads him to define the Decision as a retrospective one and as “Maastricht II”- the author considers that the decision is constructed in relation to a general theory of the State, which is very Germanic but outdated. According to the author, the FCC does not take into account the doctrinal debate that provoked the Maastricht Decision. Because of that, the FCC remains anchored in an obsolete notion of State as well as sovereignty, and as a result, it has lost the opportunity to intervene in the European debate using German “constitutional reason” instead of German “state reason”. He also considers that the concept of democracy used by the Court, based on the representative democracy, is questionable and that the Court is not conscious of the function that democracy includes today in relation to the protection of minorities. The author criticizes likewise the underassessment that the FCC produces of the citizenship of the Union as well as the concept of constitutional identity used by the Court. According to the author, nevertheless, the FCC cannot assume the position of sole incumbent for guaranteeing German constitutional identity. At last the Decision contradicts the evolutional process of constitutionalization of Europe and remains anchored to a retrospective theory of State instead of using a European constitutional theory that cannot be unilaterally developed, but rather elaborated by the 27 scientific communities of Europe. In sum, European juridical unity in its diversity will be not strengthen but endangered by the Lisbon Decision.
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