University of Administrative Sciences Kehl
The Basic Law for the Federal Republic of Germany of 23 May 1949, which at the time only encompassed “West Germany”, had just turned two years old when the “European Coal and Steel Community“ (ECSC, of 23 July 1952) came into force. At that time, Germany was politically discredited as the initiator of two World Wars, not fully sovereign, economically ruined and was, after the end of the National Socialist dictatorship, only at the beginning of societal transformation.
The six founding states of the ECSC wanted to put the numerous wars on the continent to an end. The European idea, which had been thought about for a long time (cf. Immanuel Kant, Victor Hugo, Aristide Briand, as well as resistance movements against National Socialism) was associated with a community of shared values, economic prosperity and increased influence in the field of foreign policy. By communitarising coal and steel, the neighbours of Germany aimed at securing peace through the mutual control of military goods. For West Germany, integration into a supranational order was a step towards gaining more influence over its own interests.
With the ECSC, the European Economic Community (1958) and EURATOM (1958), the method of taking small steps had been applied, transferring competencies in limited areas, without focussing on a finalité. Decisions were made by the elites and a “permissive consensus” of the populations was assumed. However, from a German point of view, the origin of the integration process as a peace project, timely linked with the end of the World War and the birth of the Basic Law, is not to be forgotten.
The “Europeanisation” of the German Constitutional Order
Over the decades, the initial economic integration grew into a more and more inclusive one. Political integration, that is, the development of a supranational institutional and procedural system facilitating joint problem-solving in a wide array of joint policies, set a supranational level “above” the EU states. Germany – like all European states – relies on the shaping of politics in interaction with other European actors and other political levels. Europeanisation, that is, changes in national contexts through European influence, therefore affects not only all policy fields, but also processes of policy-making and the polity and therefore the constitutional order of the Federal Republic of Germany.
In most policy fields, the chancellor and the different ministers represent Germany in the European Council and the Council of the European Union. It is still the most important channel to participate in the European decision-making process. Therefore, the Federal Government is a crucial link between the national and the European levels. General provisions of the Basic Law on the work of the government (particularly Art. 65 Basic Law) form the parameters of inter-ministerial coordination also in EU affairs. From the very beginning, the Ministry of Economic Affairs, alongside the Federal Chancellery and the Foreign Office, have been central to European policy. The Ministry of Finance has become increasingly important. Over the decades, it has been a subject of debate which ministry handles coordination with Europe and issues instructions to the Permanent Representation of the Federal Republic of Germany in Brussels. This was dependent on partisan political parties and coalition negotiations, on political personalities and, not least, on European integration steps and their interrelation with the characteristics and objectives of individual ministries. Since the “Single European Act“ (SEA, 1987) and particularly the Maastricht Treaty (1993), legislative powers have increasingly been transferred to the EU-level, which is why all government ministries have since introduced their own European departments. The range of topics strengthens the Foreign Office in its policy-neutral role. Concrete EU dossiers are coordinated at a low level of the ministerial hierarchy. Only in the case of disagreement do state secretaries, or the Cabinet as collegium, get involved. All chancellors of the Federal Republic of Germany had a pronounced interest in European politics. Though they have not often been able to use guideline competences in EU affairs, their authority grows in times of EU crises and historical crossroads.
The legislative function of national parliaments, particularly of the Bundestag (Art. 38 ff., 76-78 Basic Law) is affected by the policy-making in the interplay of the political levels and the legislative implementation of EU directives. The parliamentary scrutiny function vis-à-vis the Federal Government is also subject to change. Since Germany is represented in the Council by the Federal Government, the latter has legislative functions at the EU level and is able to play “two level games”. Against this background, parliamentary ex-ante and ex-post control functions were extended, based on Art. 23 (2) and (3) of the Basic Law. They assure the Bundestag’s right to information and opinion in EU matters. The Bundestag introduced an EU committee (Art. 45 Basic Law), and an EU department in its administration to get “fit for Europe”. However, in the parliamentary democracy of Germany, parliamentary rights of scrutiny are often exercised only by the opposition. It is symptomatic that the Federal Constitutional Court was the decisive factor in strengthening the rights of the Bundestag vis-à-vis the government on the occasion of the Lisbon Treaty (“Lisbon Ruling“, 2009). However, the Lisbon Treaty addressed the role of national parliaments at the European level (monitoring subsidiarity and proportionality). The rights guaranteed in the Lisbon Treaty increased inter-parliamentary cooperation between the Bundestag, which has its independent EU office in Brussels now, and the European Parliament as well as national parliaments in other EU states.
The German states (“Länder”, Art. 20 (1), 30 Basic Law) have their own legislative competences and subnational parliaments. They can influence federal legislation via the Bundesrat (Art. 50 ff., 70 ff., 76-78 Basic Law, a second “house” which is populated by the governments of the Länder), if they are affected by it. Also, EU legislation is relevant to the Länder, as more and more legislative powers, formerly allocated at their level, are transferred to the European level (Art. 24 (1)). Further, the Länder are regularly responsible for the implementation and administration of legal acts – including those of the federal level and of the EU. Especially at the beginning of European integration, they feared being downgraded to administrative units. However, the Länder have been able to use their veto positions in federal affairs to get their rights in EU affairs expanded. Initial information rights of the Bundesrat were complemented by the right to comment. Over time, this latter right became a right to veto which, similar to the logic of participating in federal law making, grants the Länder the last word on the German position in those EU affairs by which they are affected (Art, 23 Basic Law; however, when it comes to “national interests”, the Federal Government can ignore the veto). The interdependence of different political levels (“joint decision trap”), which is characteristic of the German federation, was thus doubled and includes now three levels, including the European level. In addition to their formal channels of influence on German European politics, the German Länder also initiated formal and informal ways to be heard in Brussels. They were essentially involved in the introduction of the subsidiarity principle and the Committee of the Regions of the EU (Maastricht Treaty, 1993). In addition, they built up mutual informal networks in the EU system of multi-level governance through their offices in Brussels.
For decades, the Federal Constitutional Court (“Bundesverfassungsgericht“, abbr. “BVerfG”, Art. 92 ff. Basic law) has dealt with the question of the relationship between EU law and national law and the competences of the courts on both levels. It has by no means always followed the European Court of Justice’s (ECJ) doctrine of primacy of Union law, which is not laid down in primary law and is therefore not binding. The BVerfG´s central concern is preserving the German state organizational principles, especially democracy and the rule of law, as well as human rights. The preservation of the BVerfG's own sphere of influence might also play a role in its decision making. The BVerfG has made several turns in its rulings on EU affairs, but has clearly held its right to examine EU law to test compatibility with the core identity of the German constitution. However, in spite of all jurisprudential arguments, in all of its decisions the BVerfG has found a way to ensure its rulings are at least not EU-unfriendly.
European integration has over decades remained a maxim of German politics. The constitutional order has opened up towards the European level. The principles of state organisation, the institutions and processes as well as their functional logic have evolved under European influence (“path dependency”). Interestingly, the pronounced vertical and horizontal separation of powers founded in the Basic Law is discussed by the German public as leading to inefficiency in EU affairs. It is said that, compared to other EU states, the veto power of the German Länder and the dominating ministerial interests lead to a slow and less coherent representation of German politics in Brussels.
Challenges of European Integration
With the fall of the so-called “Iron Curtain” at the end of the 1980s, the basic conditions of European integration changed significantly. A first, “silent” enlargement took place in 1990 with the re-unification of Germany, as a result of which the five “new” German states became part of the EU. In 2004, 2007 and 2013, enlargement steps were taken by adding Central and Eastern European states, which expanded the number of EU states from 15 (1995) to 28 (2013). The enlargement was preceded by an endeavour to make the legal basis as functional as possible (tension between “deepening“ and “widening” of the EU). The Treaties of Maastricht (1993), Amsterdam (1999), Nice (2003) and Lisbon (2009) have therefore significantly changed primary law.
During this time, however, more and more negative referenda took place. The referendum in Denmark in 1993, against the Maastricht Treaty incited a debate about the EU’s “democratic deficit“. The negative referenda in Ireland 2008 on the Lisbon Treaty (of 2009) and the referenda in the Netherlands and France 2005 on the European Constitutional Treaty (which never came into force) followed, as well as the “Brexit” Referendum of 2016. Where, at the beginning of integration, a “permissive consensus” was assumed, today many fear a “constraining dissensus”. The integration of societies progresses much slower than the integration of markets and states. In the elections of 2014 and 2019, various populist and so-called “eurosceptic parties” were voted into the European Parliament. They have also gained influence in national and subnational elections in almost all EU states and have therefore diminished the room in which national actors in Brussels have to maneuver. The eurosceptic “Alternative für Deutschland” has been very popular, especially in Eastern Germany. Particularly in some Eastern European states (Hungary, Poland, Romania) such parties are actually in the majority and are systematically dismantling their own national systems of the rule of law, thereby questioning European values (Art. 2 TEU).
These processes might be a result of the political classification and after-effects of the banking, debt, monetary and financial crisis as well as of the challenges of migration to Europe. They put the solidarity between the EU states under unprecedented pressure. After its reunification, Germany became the most populous state and the largest economy in the EU. Other EU states feared that this might lead to Germany assuming a dominant role in EU politics. This remains a concern, because of Germany’s restrictive, austerity-oriented, stance in negotiation on the debt crisis and because of the opening of its borders to refugees, without having coordinated with the other EU states.
The German Basic Law has turned 70 years old and has, in many ways, proven itself to be a profound constitution. Germany’s development over recent decades, in both domestic and foreign policy, cannot be understood without understanding the connection with supranational integration. However, it would suit unified Germany well to worry less about its efficiency and be better aware of the apprehensions of its neighbours instead. It is important that Germany takes on an equally responsible and solidary role in its cooperation with other EU states. The more so today, as the overwhelmingly successful European integration process faces severe challenges. Against the background of European and German history, it is necessary to defend Europe against the flare up of new populism. Most important is the integration of European populations. Societal integration across the borders of the EU states will secure the peace project of “Europe”.
Annegret Eppler is a Professor of Public Law and holds a Jean-Monnet-Chair at the University of Administrative Sciences Kehl in Germany.
Suggested citation: Annegret Eppler, “The German Basic Law and the Process of European Integration” IACL-AIDC Blog (10 October 2019), https://blog-iacl-aidc.org/70-years-of-the-german-basic-law/2019/10/10/the-german-basic-law-and-the-process-of-european-integration