Archiv der Kategorie: Europe

Constitutional Law, Europe, Germany, Verfassungsrecht

A ‘Dexit’ by Karlsruhe?

I’ve been pondering about the ramifications of the current confrontation of the German Constitutional Court and the European Court of Justice, and it seems to me that this confrontation, much more than Italian misgivings about the lack of Corona-bonds, has the potential to rip apart the European Union. For reference, check this article by Bloomberg News.

Last week, the German Constitutional Court decided, that ECJ’s verdict with respect to the legality of a specific ECB programme for monetary policy, was “ultra vires”, beyond its powers, meaning that the court’s verdict has no biding effect for German institutions.

In turn, the ECJ maintains that it is – and can be – the only institution to give binding interpretations of European law.

The problem is that the hierarchy of norms, and courts, has never been clearly and formally established with respect to European law, but most courts, most of the time, accept the doctrines of supremacy of EU law and its direct effect, developed by the ECJ in decades of case law.

And while it wasn’t too easy doctrinally for the German Constitutional Court, until last Tuesday, the Court usually managed to get around the problem by using one of a couple of legal mechanisms it developed to doctrinally remain in power while practically handing over the reigns to the ECJ in most cases relating to European law. One of the meachnisms has a name that describes how they all work: “as long as” (we deem that the ECJ is upholding constitutional rights of German citizens “on par” with what we would do, we don’t check every ECJ verdict.)

No longer.

I’m sure it was to no small extent the seemingly arrogant way in which the ECJ brushed aside the German Constitutional Court’s concerns with respect to the specific matter at hand that now caused the Constitutional Court to basically do the same – the practical requirements imposed on the Bundesbank, and thus the ECB, to comply with the verdict are, by all means, manageable – and instead declare that the ECJ that its verdict was beyond “as long as”, that is no longer tolerable.

For the Constitutional Court, this will probably feel like restating the legal obvious, although the words spoken by the Court’s President Andreas Voßkuhle prior to the verdict indicate that the Justices were quite aware of the potential political ramifications of their decision.

And the Court’s critics were vocal and numerous. So vocal, in fact, that some Justices reacted to their critics by explaining that this verdict was inevitable (faz.net, in German).

Now it appears the only way for the European Commission to react to the Court’s verdict is to sue Germany for not abiding by the European Contracts (as interpreted by the ECJ), before, well, the ECJ. And it is hard to imagine the ECJ would find a way to abandon its previous doctrinal position with respect to its legal supremacy in European legal matters, which would mean that the ECJ would have to find that the German Constitutional Court’s verdict was in breach of the Treaties of the European Union.

Which, in turn, would probably force the Constitutional Court to find those contracts unconstitutional under the German constitution, whose article 79 III explicitly prohibits such a general, unspecific, transfer of sovereignty.

As Justice Huber explains in the interview above – if the ECJ’s claim that it is the only legally binding interpreter of European law were to prevail in light of the Treaties of the European Union, it would probably mean that Germany, as well as, potentially, other member states would not have been legally able to become a member of the EU on those premises.

In other words, it seems to me that, if forced into that corner, the German constitutional court would have no other way than to rule, very likely against its own politcal inclination, that the European Treaties can, under those circumstances, no longer be applicable under the German constitution. And while I am quite certain that would not be an outcome desired by anyone, it is hard to see a way around this: the Grundgesetz is quite literal in that respect.

Which, again, in turn, would then at least require a treaty renegotiation that would codify the ECJ’s derived competence as arbiter of last resort, or in the German case, likely a new Constitution that would allow for a European institution to be the ultimate arbiter in German Constitutional matters.

While I don’t think anyone would want such a political debate about a new constitution, as its outcome would be by no means certain, with respect to a lot more aspects than merely the question of ECJ supremacy wrt to European law.

However, if the Commission doesn’t back down here in a way that would allow everyone to go back to their doctrincal corner ex ante and pretend that nothing happend, that “as long as” can still work as “don’t ask, don’t tell”,then I currently can only see this turning into a massive constitutional crisis, aka a big motherf***ing cluster**ck for everyone, in the second half of 2020, potentially even pitting the German government against the German Constitutional Court.

I may sound crazy at this point, but maybe the world is no closer to a vaccine for Covid19 than Germany is to a new Constitution.

This post has benefitted from a facebook discussion with some experts who, by and large, did not consider the situation to be as problematic as I think.

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almost a diary, Europe, traveling

Can’t Buy Me Lo-hove!

So it turns out, my vote was not needed. The Czech Eu referendum is over – 55% turnout, 77,33% said ‘yes’. Done. Welcome in the EU, guys!

Nonetheless, judging from the opinions those (not too many) Czech people held whom I talked to in Praque, a lot of the 3,48 million votes in favour of EU membership seem to have been cast not out of any European enthusiasm but due to the realisation that a small country like the Czech Republic is bound to be severely affected by whatever the EU decides – with or without any influence on the inside. Quite apart from the additional legal and political problems resulting from Czech and German politicians’ handling of the Benes-factor in the run up to the accession treaty, they expressed a lot of fear regarding the possible surrender of velvet-revolution-acquired democracy to some intransparent bureaucratic complex in Brussels.

I found this rather surprising given that most of those who shared this opinion with me are very unlikely to remember their life before the velvet revolution in colour – if they remember the revolution itself, I suppose must be a consequence of tv coverage interruppting regular kids afternoon progamming…

Thus, it is difficult for me to judge if they are really afraid of subjecting themselves to an unaccountable technocracy or if the ‘giving up what we fought for’ argument is not in fact a politically correct way of expressing nationstate-centric reservations against the European project. Clearly, the velvet revolution as well as the peaceful separation from Slovakia in 1994 has allowed young Czechs to recently develop a stronger national identity than was conceivable in the formrt pseudo-internationalist totalitarian regime. When my Prague Castle architectural tour guide, a young female history of arts student, talked about the “Czech” national revival at the end of the 19th century on Sunday morning before briefly mentioning the referendum, the subtext was obvious to everyone present – she was actually alluding to the national revival at the end of the 20th century – and the fear of losing her national and cultural identity, of being assimilated.

She voted in favour, she said – because she is hoping for EU cash for her art projects and because of – resistance-is-futile – assumed inevitability.

She, like most others I talked to this weekend, may be right about the project’s inevitability. But can this be enough for those who believe in the European cause? Hardly. They will have to continue to fight for the new members’ heart. And we all know that John Lennon, a graffiti of whom became a revolutionary rallying point in Prague, was absolutely right about this – “money can’t buy you love”.

So let’s hope that paid-for cohabitation is only the beginning. Again – welcome in the EU, guys!

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almost a diary, Europe, traveling

I’m in Prague this weekend…

… and I really think I should be allowed to vote in the EU accession referendum the Czech Republic is holding today and tomorrow, given the apparent lack of any exitement for the community the people over here show quite visibly. I was wandering around the city all afternoon and late evening and all I saw was a single, lonely EU flag – at the tourist information center.

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Europe, media, music

I want to read The Sun tomorrow!

The annual Eurovision Song Contest is over. And Turkey is taking the cup to Ankara. As usual, however hyped, there’s no reason to watch the entire event if you are able to catch the replays intended to remind the voting public of earlier entrants. These ten minutes are usually not only sufficient but at times as much as is possible to bear. The real reason to watch is not the music, it’s the voting procedure that is happening afterwards – and this time, the European Broadcasting Union even offered an animated scoreboard. If your country doesn’t get points from other European television viewers (or Juries, for those countries without a stable telephone infrastructure (Russia, Bosnia-Hercegovina), you can follow its label on the screen moving downwards…

That is if the label has been up somewhere at some point. In light of the UK’s results tonight, the BBC News Online’s Caroline Westbrook was a little bit more than prophetic when she said –

“This year Jemini have taken the UK’s hopes to Riga, and while their song Cry Baby is perfectly pleasant it’s not thought to be strong enough to see off the likes of Spain, Iceland, Turkey or the much-hyped Russian entry from Tatu. … It’s fair to say that if we do want to win again, we should come up with a better song…”

Well, I the song is probably a part of the explanation for the fact that the UK did not get even a single point from any of the twenty-six nations involved. But it was not worse than most of the other songs, nor was, in my opinion, the performance – as far as I can judge from the replays…

Looking at the results it is pretty evident that voters all over Europe rewarded musical diversity. And a huge part of the songs performed in Riga tonight simply were hard to mentally separate from each other, in fact, watching the replays was like watching one ten minute medley. The British song was no exception to that rule. Like the song, the British performance was as dull as any other medley-song performance. So Caroline Westbrook had probably a reason to predict they would not win – but being just like the others is clearly not helping to explain why Britain did not get a single point this year.

And I don’t understand it either. I don’t think it was about the British stance in the war on Iraq – despite the fact that it was a telephone vote in most countries. So it might just have bad luck. The BBCi is reporting the result remarkedly calm so far –

“The UK’s entry Jemini – duo Chris Crosbey, 21, and Jemma Abbey, 20 – had the ignominy of being the only entry to score no points. It is the worst performance in the UK’s Eurovision history. The UK’s previous lowest performance was in 2000, when it was placed 16th.”

Maybe it’s too early for comments. Maybe they just don’t care. But I can’t wait to read The Sun tomorrow.

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compulsory reading, Europe, US Politics

Quicklinks, Tony Blair, And The Borg

Sorry for the apparent recent lack of updates. Not that there’s not enough stuff I’d like to comment on, I just did not find the time lately.

But there’s exciting news, too. Look to your left, my gentle readers, and you’ll find a seamlessly integrated second blog called “Link Of The Minute.” This is where I hope to post even when I don’t find the time to put my simple opinions into overly complicated writing. The “Quote Of The Minute”, on the other hand, has moved to the right (and will also be blog powered soon, now that I have found a way to integrate more than one blog on one page with Javascript. It’s actually quite simple – here’s how the magic happens.

Alright, more tomorrow. Expect me to be rather critical of the “European-defence-summit” in Brussels tomorrow. The history of this summit is just one more example how elections even in a small country like Belgium could have important international ramifications. But not this time, I suppose, as the US are apparently trying to play divide et impera by beginning to mend things with the German government while bashing France – think of last week’s “there will be consequences, and it will hurt”-statement by Colin Powell, who is coming to Germany in May, and statements from “beltway-insiders” who suddenly seem quite relaxed about the future of US-German relations.

Given this seeming American recognition that it is not in the US’ interest to force Germany to opt for an all-francophone foreign policy, I do not quite understand today’s “resistance is futile”- declaration by the American ambassador to Europe, the British PM Tony Blair.

All he is doing is increasing the perception that the coming world order is indeed one in which Jean-Luc will have to become Locutus of Borg. If this is what he wants to achieve, then fine. But what is really needed right now is someone who explains that a unipolar world would not be a unilateral one.

Especially for the British PM it ould be important in days like these not to repeat the mistake Churchill made after WW2, by outlining three spheres of British interest – being the US’ junior partner, the Commonwealth, and Europe, in that order.

The US never wanted a junior partner telling them how to run the world during the cold war. They wanted to use a British membership in the EU to gain influence in Brussels. Early in the 1960s the US government told the British that they would have their “special relationship” with Germany instead if the UK would not join soon. Well, it took more then ten years to get in, as Général deGaulle understood precisely what was at stake.

So he vetoed the British membership in the EU until the common agricultural policy was finally agreed upon – in a way that favoured France and would seriously disadvantage the UK once it entered the EU. So the British influence in Europe was severly hampered by this and the fact that the 1970s brought economic gloom rather than glory.

To cut a long story short – Churchill’s three spheres seemed to be a good idea back in 1945. But they turned out to be a horrible mistake. And while everyone knows that history does not repeat itself in detail, I might – as I already said last December commenting on Blair’s European ideas and the Turkish application for membership – repeat itself in structure.

Whatever Blair’s judgment about the extent of American primacy in the West – it does not matter at all if resistance is actually futile or not: there will be resistance if it is perceived necessary. Blair’s talk raises the chances it will.

And so it looks like the British government is – again – underestimating the European dynamics. It looks as if Capt’n Tony should have watched more StarTrek – NextGeneration” recently – instead of dubbing “The Simpsons” ;-).

Ah, thinking about all this, a very good book regarding the British-European relations post 1945 is: Stephen George, An Awkward Partner: Britain in the European Community. Well… I liked it a lot.

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almost a diary, compulsory reading, Europe, Germany, oddly enough, traveling, USA

My New Ralph Lauren Sweater.

So via Blogdex, I found this hilarious article published by USA today called “Ugly sentiments sting American tourists”.

I suppose it was pretty tough to write this article. You can literally sense how the evident editorial intention to publish yet another “peaceful American tourists tortured to death by mad and naked European pacifists”-peace made the newspaper’s European correspondents look desperately for something anti-American to write about. Their effort wasn’t too successful, even if you insist to count Bush-policy discussions as anti-American torture, as the article indicates –

“‘I am certain that a number of American visitors will be asked about the U.S. administration’s policy on Iraq. But if indeed there have been some unpleasant encounters, I strongly believe that they are few and far between,’ says Patrick Goyet, vice chairman of the European Travel Commission in New York. ‘Furthermore, speaking as a European and for the vast majority of my fellow Europeans, I consider any such behavior idiotic and embarrassing.'”

Period.

But the best part of the article is a bullet point list by Bruce McIndoe, CEO of iJet Travel Intelligence that tells American tourists how to behave when in Rome. Well, we all know what the obvious answer is, but let’s have a more detailed look at Mr McIndoe’s propositions.

Avoid American fast-food restaurants and chains.

Believe it or not, but McDonald’s and their competitors do not just cater American tourists in Europe. Like it or not, the deconstruction of traditional European eating habits is advancing rapidly, even in France, although they don’t like to talk about it for cultural and marketing reasons. So Starbucks has just announced to open more than 200 branches in Germany. And I had my last McBurger last Monday night. Remember “Pulp Fiction“? It was a “Royal With Cheese” – basically the same, but with subtle, metric, differences.

Keep discussions of politics to private places, not rowdy bars.

Well, it’s never a good idea to go to a rowdy bar anyway, if you aren’t a cowboy yourself. I seriously wonder what kind of etablissement Mr McIndoe had in mind here. What exactly are “rowdy bars”? There are hardly any cheap-western-movie-style saloons in Europe, should that be of any help. But wait, he might be concerned about the significant amount of Irish and English Pubs where it’s definitely a lot easier for American tourists to talk to Europeans as most interaction is in English….

Take a rain check on wearing clothes featuring American flags or sports team logos.

Damn. I just bought one of those Ralph Lauren US-flagged sweaters and I am not even American. And I did not even buy it for any ideological reason. And when I recently wore it during a generally leftist (read: European left, not its kinder, gentler, liberal US cousin) theatre company’s performance I was actually a bit stunned that no one cared at all. Seriously, the American flag is not something only Americans would wear in public in Europe.

The same goes for baseball caps or university logoed sweaters. If all the Germans who wear Georgetown or Harvard sweaters with Yankee baseball caps actually knew those universities and had any real idea about the baseball team whose logo they promote, Germany would have certainly fared a lot better in last year’s international secondary education assessment. But I will tell you, should I ever feel safer not wearing my Ralph Lauren sweater.

Keep your passport out of sight.

Indeed a good idea. But mostly because it really is a hassle to get a temporary one abroad.
Keep cameras, video equipment and maps tucked away.

Right – very interesting point. Sure, there are places where its safer not to be to easily identifiable as a tourist. Just like in Miami, a few years ago, remember? So this is good advice for all tourists if they choose to visit places they should rather not. But if this is an advice specifically aimed at Americans in Europe it does come across a tad bit arrogant – there are cameras and video equipment in Europe. We also have mobile phones, T-mobile hotspots and even ones with at affordable rates…

Soften your speech; Americans typically overshadow their hosts in the volume department.”

This, I have to agree, is partly useful advice. Some American tourists do overshadow almost everyone in the volume department. That is particularly true for shrieking female undergraduate students. Strangely though, it does not hold at all for all the Americans I know personally…

I wonder what Mr McIndoe’s ideas for blending in in the US would be? Maybe you, my gentle readers do have some suggestions?

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