EU Law Enforcement: Unconstitutional?
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By Marc Schulman on European Union
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And you thought that the US was the only country that had a problem with supranational courts (i.e., the International Criminal Court)? Not so. In the opening paragraph of a lengthy article, Spiegel Online says that
The European Union wants to integrate law enforcement. But that means that laws passed in one country would be valid across the continent. Germany's high court believes such a provision is unconstitutional. A decision is set for April that may have serious consequences for the future of the European dream. [My emphasis]
Critics like German high court justice Udo Di Fabio
wonder if judicial cooperation throughout the European Union is a step in the direction of a "European super-state." In other words, could centralizing power at EU level limit member states' ability to guarantee rights currently enjoyed by their citizens?
In a case to be decided in April, the court
intends not only to address the issue of judicial cooperation among EU member states, but also the very foundation of a united Europe.
The list of issues justice Di Fabio intends to raise ranges
from the implementation of the "principle of democracy" in the European Union, through the risks of "gradual elimination of the sovereign state" to the question of whether the pro-European softening of Germany's basic law four years ago was an unconstitutional amendment of the constitution.
If the judges' concerns prevail, then according to Federal Minister of Justice Brigitte Zypries
we would essentially be parting ways with the European Union.
There are problems with the European arrest warrant:
Criminal law experts are not the only ones who view national jurisdiction over decisions concerning good and evil, guilt and punishment, and the freedom and property of citizens as the core element of national sovereignty.
If a state ceases to protect its own citizens against prosecution by other powers, citizenship will have lost its central function: membership in a community that provides protection in exchange for the payment of taxes. In that case, the classic nation-state concept of a powerful Leviathan protecting weak individual members of society will be just as difficult to maintain as the state monopoly on power justified by this concept. [My emphasis]
Such fundamental concerns can only be ignored the by the German high court if the judges presiding there recognize something already considered a given in Brussels: that a new Leviathan -- Brussels' Europe -- has already assumed power and replaced individual nation states as the protector of European citizens' rights.
But there are substantial problems with this assumption, one of the largest being that the European Union has yet to establish complete democratic legitimation. Most of the laws it is using have been created by the EU's 25 governments rather than by Europe as a whole. And Germany's Federal Constitutional Court is highly skeptical of such a State of Europe.
The French referendum on the EU Constitution will take place on May 29 -- a few weeks after the German court makes its ruling. How will the French people react if the German high court decides that centralizing law enforcement is unconstitutional? |
