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DE RUEHRL #1015/01 2321641
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R 201641Z AUG 09
FM AMEMBASSY BERLIN
TO RUEHC/SECSTATE WASHDC 4987
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHBS/USEU BRUSSELS
RUCNFRG/FRG COLLECTIVE

UNCLAS SECTION 01 OF 03 BERLIN 001015 
 
SIPDIS 
 
SENSITIVE 
 
STATE FOR EUR/CE and EUR/ERA 
 
E.O. 12958:  N/A 
TAGS: PREL PGOV ECON EUN GM
SUBJECT: GERMANY BACK ON TRACK TO RATIFY THE EU LISBON TREATY BY THE 
END OF THE YEAR 
 
REF: 08 BERLIN 248 
 
¶1. (SBU) SUMMARY: Germany's Grand Coalition government should be 
able to revise the implementing legislation for the EU Lisbon Treaty 
as mandated by the German Constitutional Court before the September 
27 Bundestag election.  However, even if this happens, Germany may 
still not be in a position to deposit its instrument of ratification 
for the Lisbon Treaty immediately.  Since the revised legislation is 
likely to elicit another constitutional challenge, Germany may have 
to wait for the Constitutional Court to rule again before going 
forward.  The expectation, however, is that the Court will agree to 
expedited proceedings, thereby possibly allowing Germany to ratify 
by the end of the year, a high priority for Chancellor Merkel. 
Meanwhile, by calling into question the old consensus in favor of 
European integration, the Court ruling has given license for 
Euro-skeptic politicians to voice their long-suppressed anti-EU 
views.  While most German politicians support the Court decision, 
some legal experts argue that the Constitutional Court went beyond 
its own remit in making this ruling and worry about the 
implications.  END SUMMARY. 
 
IT WASN'T SUPPOSED TO BE LIKE THIS 
 
¶2. (SBU) Chancellor Merkel feels a special attachment to the Lisbon 
Treaty because the key political breakthroughs leading to its 
conclusion were made during her chairmanship of the European Council 
during the first half of 2007.  After the Lisbon Treaty was signed 
in late 2007, the German government moved quickly to complete the 
necessary parliamentary procedures for ratification, with both the 
Bundestag and Bundesrat overwhelmingly approving the treaty in early 
¶2008.  But the process came to a screeching halt when two 
constitutional challenges, one by CSU politician Peter Gauweiler and 
the other from the Left Party, were lodged against the treaty at the 
German Constitutional Court in Karlsruhe.  President Koehler decided 
he could not to sign the instrument of ratification until the Court 
had ruled on the complaints (reftel). 
 
¶3. (SBU) It took the Court more than a year to announce a ruling, 
which finally came on June 30, during the last week of the regular 
Bundestag session.  While deciding the Lisbon Treaty itself was 
constitutional, the Court found the implementing legislation to be 
inadequate and said the Bundestag and Bundesrat had to be given a 
greater say in German EU decision-making before the government could 
proceed with ratification of the Lisbon Treaty.  This sent the 
government scrambling to schedule special sessions of the Bundestag 
and Bundesrat in late August and early September -- during the 
height of the parliamentary election campaign -- to consider revised 
legislation that meets the concerns of the Constitutional Court. 
 
¶4. (SBU) The government is desperate to pass this legislation before 
the September 27 parliamentary election.  Waiting until afterwards 
could mean a delay of up to four to six months, since legislative 
negotiations could only commence once the new government coalition 
was formed and all the relevant parliamentary committees were set 
up.  Germany would then not be in a position to ratify the Lisbon 
Treaty until spring 2010 at the earliest, perhaps long after 
everyone else. 
 
IN LIKE A LION, OUT LIKE A LAMB 
 
¶5. (SBU) The Christian Social Union (CSU) -- the Bavarian sister 
party to Chancellor Merkel's Christian Democratic Union (CDU) -- 
initially seized on the Court's decision to make far-reaching 
demands for increasing the influence of the federal states on German 
EU policy and for limiting the competencies of the EU.  Among other 
things, the CSU proposed giving the Bundestag and Bundesrat the 
right to adopt binding resolutions on EU policy and to subject all 
major EU decisions, like the accession of new members, to public 
referenda.  Not only did the opposition parties reject these ideas, 
but both the CDU and the Social Democrats (SPD) did as well, setting 
up what many feared could be a possible train wreck within the 
Coalition on the eve of the parliamentary election. 
 
¶6. (SBU) Calmer heads have since prevailed, with the CSU getting 
some minor concessions, but otherwise backing off its more ambitious 
proposals.  The CDU/CSU and SPD announced on August 18 that they had 
reached agreement on the new legislation and that the Free Democrats 
(FDP) and Greens supported it as well.  After a first reading and a 
parliamentary debate on August 26, the Bundestag is expected to vote 
on the new law on September 8.  The Bundesrat vote is scheduled for 
September 18. 
 
¶7. (SBU) While there is basic agreement on the implementing 
legislation, a couple of CSU demands remain unresolved.  The most 
significant of these is for a reservation to the treaty, specifying 
that the treaty only applies to Germany within the framework of the 
 
BERLIN 00001015  002 OF 003 
 
 
Constitutional Court decision.  All of the other political parties 
have rejected this proposal, arguing it would call into question 
Germany's adherence to the treaty and probably prove unacceptable to 
other EU member states.  The solution for this and other remaining 
demands may be a non-binding resolution that acknowledges CSU 
concerns, while limiting any negative political or legal 
repercussions. 
 
¶8. (SBU) While the CDU and CSU have been butting heads over this EU 
issue for weeks, there is one thing on which they are both agreed: 
they need to go into next month's Bundestag election completely 
united.  A CSU Bundestag staffer assured us early on -- even as the 
party was insisting publicly on its demands -- that the CSU would 
not allow the negotiations over the implementing legislation to 
fail. 
 
NOT THE END OF THE STORY 
 
¶9. (SBU) Even if the revised implementing legislation successfully 
makes it through both houses of parliament in September, this 
probably will not be the end of the story.  It is all but certain 
that one or more new constitutional complaints will be filed in 
Karlsruhe once the Bundestag has passed the new implementing law. 
The Left Party, and maybe even CSU parliamentarian Peter Gauweiler, 
are likely to argue that the revised implementing legislation does 
not go far enough.  President Koehler is expected to wait for the 
Constitutional Court to rule again before signing the instrument of 
ratification.  While the Court took more than a year to make its 
initial ruling, the hope is that it will act on these new complaints 
quickly, using expedited procedures.  Therefore, there is still a 
good chance that Germany will be able to ratify by the end of the 
year, a priority of Chancellor Merkel. 
MAKING EURO-SKEPTICISM POLITICALLY CORRECT 
¶10. (SBU) In addition to the impact on ratification of the Lisbon 
Treaty, the June 30 Court ruling was also significant for what it 
revealed about German attitudes toward the EU.  Before the ruling, 
it was considered gauche and politically incorrect to criticize or 
call into question European integration.  With the Court's emphasis 
on national sovereignty and identity, many German politicians, 
especially within the CSU, have felt free to express in public 
long-suppressed reservations and concerns about the ever-increasing 
concentration of power in Brussels.  This shows the degree to which 
the old consensus that European integration is always unquestionably 
in Germany's interest has eroded. 
 
¶11. (SBU) The Court ruling has also elevated Peter Gauweiler, 
heretofore a marginal Bavarian politician, to cult status within the 
CSU.  Previously, he was viewed as a quixotic figure tilting against 
perceived injustices in an endless series of complaints before the 
Constitutional Court.  One of his more famous complaints was a 
demand that the Court order the extradition of former U.S. Defense 
Secretary Rumsfeld to Germany to be prosecuted for war crimes in 
connection with the U.S. invasion of Iraq.  Now that one of 
Gauweiler's complaints has actually found traction, he is seen by 
many in his party as a visionary who correctly saw the challenges 
presented by the Lisbon Treaty. 
 
DID THE COURT GO TOO FAR? 
 
¶12. (SBU) With the dust having settled from the June 30 Court 
ruling, a debate has begun among experts and legal scholars about 
whether the Court overstepped its bounds in requiring the government 
to revise the implementing legislation.   The Court took advantage 
of the complaints against the Lisbon Treaty to thoroughly examine 
the relationship between the EU and the member states.  Even though 
the German constitution expressly supports the process of European 
integration, the Court emphasized that this could not be at the 
expense of the sovereignty of the German people.  A leading German 
EU expert told us that the Court had based its decision on what he 
called archaic and outdated notions of national sovereignty and 
national identity, which run counter to the whole concept of 
European integration.  He thought the ruling had set a bad precedent 
and would encourage further constitutional complaints in the coming 
years, which could seriously limit the government's negotiating 
position in Brussels and its ability to commit to further 
integration. 
 
¶13. (SBU) This expert also regretted that the Constitutional Court 
had so successfully embarrassed the Bundestag and Bundesrat -- 
essentially scolding them for not sufficiently protecting their own 
powers and prerogatives -- that they were willing to make whatever 
changes to the legislation that the Court demanded.  He expressed 
concern that this could lead the Bundestag and Bundesrat to become 
overly deferential to the Court and to allow the Court to insert 
itself into political matters outside its judicial remit. 
 
 
BERLIN 00001015  003 OF 003 
 
 
POLLARD