Germany's constitutional court: Britain's EU reservations ‘cannot be dismissed’
Professor Hans-Juergen Papier is president of Germany's constitutional court and therefore Germany's most senior judge. And he is concerned by the ‘subsidiarity’ principle, whereby the actions that may best be performed at a regional level should see the EU devolve such powers to member states. But he observes that national parliaments ‘have no guarantee that EU powers will not continue to grow’.
Professor Papier points out that the sheer number of laws coming from Brussels - there were 18,167 regulations and 750 directives between 1998 and 2004 - means that effective scrutiny is ‘somewhat impracticable’ within the brief period of time available for new EU laws to be considered. He says that the dynamics of subsidiarity are connected to the ‘ever closer union’ principle, meaning that there is ‘from the point of view of member states no fixed limit guaranteed to the creeping transfer of competences (to EU level)’.
The 'Constitution for Europe' may be called the 'Treaty of Lisbon', but this Treaty contains within its text the very mechanism by which it may become a constitution at any point in the future, should it so be wished. It introduces 'simplified revision procedures' which means that the Treaty is self-amending. Article 48 (6) has been called the 'ratchet clause' and allows Treaty amendments to be made without the need for a new amending treaty or further ratification. It also allows for the revisions of text 'on internal policies and actions of the Union' without the necessity to convene an Inter-Governmental Conference.
Professor Papier therefore fully understands the UK’s (and Poland’s) decision to opt out of the EU's charter of fundamental rights, which reflects a ‘deeply rooted mistrust of a union and a court’ that pulls ‘ever more competences to it’.
But here is the revealing phrase:
He says that at first glance this mistrust appears ‘misplaced’ because the charter specifies that it only applies to EU law.
‘But at second glance, the reservations of Poland and the United Kingdom cannot be dismissed fully out of hand.’
He concludes that too much of what emanates from the EU is ‘less derived from legal texts but from a "platonic legal heaven," with a vagueness concerning both their content and their actual existence’.
Perhaps some of the practical outworkings of Plato’s thinking in The Republic may occasionally be a little vague, but there is no doubting that the EU is intent on filling in the gaps - and then denying completely what they are doing or that they know anything at all about it.