Cablegate: Germany Back On Track to Ratify the Eu Lisbon Treaty by The

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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

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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.

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