Constitutional Identity Politics? The German Constitutional Court, the Lisbon Treaty and Europe's Constitutional Doctrine

Abstract

The constitutional identity of the Member States of the European Union has become a quasi-legal concept not only in academic discourse but also in the EU treaties themselves. Democratic government is of course an important part of this identity. However, as the 2009 judgment of the German Federal Constitutional Court on the ratification of the Lisbon Treaty has again confirmed, democracy continues to be seen as being mainly rooted in the national context. This paper evaluates critical comments of the Court's decision to show some of its weaknesses with respect to the particular political and legal conditions for establishing democracy at the European level. It focuses on the three main constitutional issues raised by the Court: preconditions for a functioning democracy, constitutional identity and, finally, different interpretations of sovereignty. The paper also intends to demonstrate that the Court underplays important initiatives of the European Parliament to improve the democratic functioning of the Union as well as some new provisions introduced by the Lisbon Treaty.