’Bis hierher sollst du kommen und nicht weiter’: the German constitutional court and the boundaries of the European integration process

Abstract

Introduction: European integration as an open-ended process The European integration process which commenced in the 1950s has been regarded as open-ended, because there is no political consensus between participants on its ultimate goal. Some see the aim of integration as the establishment of a fully federated ‘United States of Europe’, while others support a more limited form of integration, restricted to the policy areas where it is more beneficial for the European Union's member states to cooperate closely than to act individually. From a political perspective it may be unnecessary to specify a final goal. Instead, integration proceeds step by step, with closer cooperation agreed on in a piecemeal fashion if and when it is regarded as advantageous. However, from a legal perspective things changed in 2009 when the German Federal Constitutional Court (FCC) determined that the German Constitution (the Basic Law) sets definitive boundaries to EU integration. In its landmark ruling on the compatibility of the most recent EU reform treaty with the Basic Law, the Court delivered its manifesto on the future of the EU. While declaring that the Constitution permitted Germany's ratification of the Treaty of Lisbon, the FCC's core message seemed to be: ‘Bis hierher sollst du kommen und nicht weiter’ (‘Hitherto shalt thou come, but no further’). The judgment triggered strong reactions, with Alfred Grosser calling the day of the judgment ‘a black day in the history of Europe’ and the President of the EU Commission, José Manuel Barroso, expressing concern that the judgment could undermine the European project. The importance of the judgment for the EU is reflected in Christian Tomuschat's prediction that ‘[g]enerations of politicians and lawyers will have to read and re-read the … ruling of the German Constitutional Court … regarding the Treaty of Lisbon … on almost a daily basis for many years to come’.