Integrationsverantwortung: Ein neuer Topos aus Karlsruher Werkstatt

Responsibility for Integration: A New Theme Made in Karlsruhe Integrationsverantwortung is a neologism that was coined by the German Federal Constitutional Court (Bundesverfassungsgericht - BVerfG) in its 2009 judgment on the Treaty of Lisbon. The term translated as »responsibility for integration« but does in fact mean the constitutional limits that the German Basic Law (Grundgesetz - GG) imposes on the Treaty, especially compliance with democratic principles enshrined therein, and which are specified in the judgment. According to the Court, the national laws accompanying ratification of the Treaty deviated from these principles and were therefore declared void. The German legislature took account of the Court's findings in the Responsibility for Integration Act (Integrationsverantwortungsgesetz-IntVG). Its numerous and detailed rules on participation of parliaments, responding to the extension of European Union (EU) competencies in the Lisbon Treaty, are likely to complicate future attempts to create a Union-wide (optional or mandatory) private law, especially if the legislation of other Member States is used as a catalyst. In most cases covered by the IntVG, the Bundestag must formally authorise the German member of the Council of Ministers to vote in favour of the proposal or to abstain\ otherwise the German member of the Council would be obliged to reject the European legal act. The European act would then fail, as its adoption must be unanimous. Among the EU competencies that require neither this kind of empowerment nor unanimity in the Council, none provides a suitable basis for a pan-European private law. Article 81(2) of the Treaty on the Functioning of the European Union (TFEU), confined to » judicial cooperation in civil matters«, does not allow for approximation of material law. While no such restriction is inherent in Art. 114 TFEU, the harmonisation of national private law that it admits must serve the functioning of the internal market, with only internal and non-commercial legal relations being excluded. Requiring the Union to act »within the framework of the policies defined in the Treaty«, even Art. 352 TFEU cannot provide the basis for a comprehensive private law regime where the Treaty remains otherwise silent on the matter. Even insofar as the provision serves as a basis for (optional) rules, the Council must decide unanimously and its German member must have been previously empowered by the Bundestag (§ 8 IntVG). In introducing the barriers, the Federal Constitutional Court underestimated the democratic achievements of the EU and adhered to nationState-based concepts of legitimacy that have been criticised as backwardlooking. Its assumption that Art. 352 TFEU would come into conflict with the interdiction of »blanket empowerments« contrasts with its former position on Art. 308 EC\ involvement of national parliaments had never been considered necessary in this respect, even though the scope of its successor provision is not palpably broader. Confining § 8 IntVG to legal acts not related to the internal market may appear politically desirable but would sidestep the will of the contracting States, which was to abolish this criterion. Positive effects of the IntVG on integration should be mentioned, despite their potential to hamper standardisation of private law in Europe. Ultra vires control of Union acts by the German Constitutional Court is unlikely to be exercised where Parliament has positively assented to EU legislation whose compatibility with the principle of conferral is disputed. If attempted, standardisation, or harmonisation, of private law in Europe might evidence the true significance of Art. 352 TFEU for European integration. In summary, the IntVG makes European law-making less predictable but might help parliaments to become involved in debates on projects such as the »28th model« that have until now largely remained in the domain of legal scholars. The likelihood of its mater