EU: COMMUNITY LOSES ITS WAY IN FOG. - A German constitutional ruling could put Europe's unification into reverse.

by Peter Wilsher.
Last Updated: 31 Aug 2010

A German constitutional ruling could put Europe's unification into reverse.

Once upon a time, when the 12 signatories to the Treaty of Rome made up something called the European Community, their collective destiny appeared to be reasonably predictable and clear: despite the delays and bureaucratic irritations inevitable in such a large enterprise they would move ever closer to each other in the enjoyment of shared peace and prosperity. As recently as two years ago, when their leaders shook hands with each other in the little Dutch town of Maastricht, it seemed within touching distance of success.

Rarely can a dream have evaporated so swiftly. It is just 12 months since official completion of the long-awaited single market, and barely 60 days since its 350 million beneficiaries became citizens of that new, high-flown entity to be known as the European Union (EU). Yet the unity of its members - whether on international trade, monetary policy, immigration, unemployment, relations with the former Soviet satellites, *or coping with the tragedy of Yugoslavia - is virtually non-existent, and its future looks doubtful and obscure.

Vaclav Havel, the president of the Czech Republic, has probably come closest to putting his finger on the causes of concern. In a speech to the general assembly of the Council of Europe, he argued that all the administrative measures, general treaties and high-sounding declarations over which ministers so endlessly debate can mean nothing unless they are expressions of a general sense of European purpose. He foresaw little hope of meeting Europe's countless current pitfalls and challenges, if statesmanship meant merely going 'from conference to conference, our attache cases brimming with paper that wraps base and narrow-minded interests in noble, high-sounding words'.

Whether sufficient common purpose can be mobilised to overcome such deep-seated obstacles as French intransigence over GATT, or facing up to the costs and responsibilities of international security, remains a key imponderable clouding Europe's future. But both today's pervasive mood of backbiting and suspicion, and one or two specific policy decisions, give reason for serious doubt.

One of the most important of the specifics may well turn out to be the judgement by the constitutional court in Karlsruhe, which finally cleared the way for German ratification of Maastricht. At the time this was treated as just a tiresome and Teutonically pedantic technicality which had to be got out of the way before returning to serious business. But in fact it has the potential to put the whole European unification process into reverse.

What the German judges did, in the course of giving a strictly limited go-ahead for some elements of the European integration programme, was to reassert the supremacy of German constitutional law and German political institutions when it comes to endorsing decisions which directly affect the lives and fortunes of German citizens. That assertion, in effect, challenges the entire legal basis of the Community, which, since a 1964 decision by the European Court of Justice, has been that Community law, once passed by the Council of Ministers, takes direct effect in member states, and overrides any clashing national legislation.

This has not mattered much until recently, as all important Brussels policy decisions had to be agreed unanimously. But now we are into a new era of qualified majority voting - with lots of fresh would-be members waiting in the wings, and a massive controversy already building up over just how many votes each of the old and new partners should be allowed to wield - and it is likely to become of central importance.

No one could accuse the Karlsruhe judges of being wobbly or imprecise about these matters. In their detailed ruling they laid down explicitly that 'the European Union is an association of states and not a state itself with a European people' and that they regard themselves, within Germany, as the ultimate arbiters over the meaning of EC treaties, the legitimacy of its laws and the actions of its institutions. Any other interpretation, or attempt to act on it, 'would not be in conformity with the law of ratification in Germany, and thus not legally binding within the German member state'. In other words, Germany would be free, in a wide variety of circumstances, to ignore or disobey, and has in effect arrogated to itself an opt-out clause that could one day prove far more comprehensive than those so tetchily negotiated by Britain and Denmark.

The most immediate effect of all this is to scupper any residual notion that ratifying Maastricht set Europe off on an 'irreversible' road to economic and monetary union.That may be what the text says (as the German Chancellor, Helmut Kohl, himself accepted in his speech at the signing ceremony) but in practice, and in law, Germany now insists that it will stop short of any final convergence unless and until the Bundestag has given its explicit consent.

That consent may now be a very long time coming. Meanwhile, Europe's future direction remains shrouded in fog. And it is unlikely to clear very much until a new generation of leaders can answer the Czech president's challenge and rediscover a European sense of purpose. Opting out is not a policy.

Peter Wilsher is a freelance consultant and writer.

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