When the German constitutional court expressed itself in the Lisbon ruling, on the 30th of June 2009, the famous German newspaper Der Bild published the corrosive headline “the end of federalism”. The aim of this paper is to present and discuss the arguments of the Court concerning (1) the nature of the EU as a confederation (Staatenverbund), (2) the illegitimacy of further development towards a federal state (Staatsverband) and (3) the determination of the EU’s ‘core competences’, in order to shed light on why, within the EU, the relationship between federalism and democracy appears to be so tense. The point is that the claim that the EU cannot legitimately become a federation without calling for the constituent power of the German people (§228) is grounded in a circular logic that ultimately depends on the definition of citizenry adopted. Two connected issues will thus be deepened. On one hand, we look at the problem of jurisdictional competence attribution, the ‘ultra vires’ and ‘domaine réservé’ doctrines. In particular, the adoption of criteria for determining the state’s core competences on the basis of the principle of essentiality (Wesentlichkeitstheorie) will be assessed. On the other hand, the focus is on the theory of democracy that the German constitutional court embraces, according to which ‘the democratic legitimacy derives from the interconnection between the action of European governmental entities and the parliaments of the Member states’.
available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1855566
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