On June 30 the German Constitutional Court decided in an exciting verdict whether the Lisbon Treaty is unconstitutional. But the court used a trick by declaring the treaty per se as constitutionally compliant, but at the same time declaring that part of the accompanying legislation as unconstitutional, which was used by the Bundestag (lower house) and Bundesrat (upper house) to ratify the treaty: “The law about the extension and strengthening the rights of the Bundestag and Bundesrat regarding the affairs of the European Union (extension law) is violating article 38 (1) as related to article 23 (1) of the constitution insofar as the participatory rights of the German Bundestag and Bundesrat have not sufficiently been developed."
This pertains to a number of points in the Lisbon Treaty for which the Federal Constitutional Court claims that the Bundestag and Bundesrat tried to disempower themselves. An important aspect is the decision-making process regardin gmilitary deployments of the European Union.
In the verdict it says that the appeal of the petitioners is justified in this regard “as far as the applicant claims a violation of the decision-making power of the German Bundestag concerning the deployment of German military forces.” And “A similarly distinct borderline is drawn by the constitution concerning decisions about the deployment of the federal army. Except for the state of defence, a deployment abroad is only allowed within the system of mutual collective security (article 24  of the constitution), while the concrete deployment constitutionally requires the approval by the Bundestag. The federal army is a ‘Parliamentary Army’, and therefore the representative organ of the people has to decide about its use."
The Lisbon Treaty creates vast new military competence for the EU. This is unfortunately confirmed by the Federal Constitutional Court in its verdict. But fortunately the Federal Constitutional Court has corrested the fact that the German Bundestag had disempowered itself by its approval of the Lisbon Treaty.
The judges clarified: only the German Bundestag is empowered to decide about foreign military deployment of the federal army. According to the Federal Constitutional Court, the disempowerment of the Bundestag concerning decisions about military deployments of the EU as it is stipulated by the Lisbon Treaty and the German accompanying legislation is unconstitutional.
One of the questions was, who is going to decide whether the german federal army will participate in a military operation of the EU. The judges of the Constitutional Court have now clarified that this is the exclusive authority of the Bundestag.
The verdict says: “In this case (the decision about a military deployment by the European Council, T.P.) the German representative in the council would be constitutionally obliged to refuse his approval of any proposed resolution which would violate or circumvent the constitutional prerogative of the parliament concerning military issues.”
This statement of the verdict becomes particularly interesting with regard to the “Permanent Structured Cooperation” according to Protocol No. 10 of the Lisbon Treaty. The protocoll calls for themilitary deployment of “EU Battle Groups” within five to 30 days. However, after the verdict of Karlsruhe (seat of the German Federal Constitutional Court, translators note), a German participation in such rapid deployment will be practically impossible, because it would be necessary for the Bundestag to convene every time prior to the European Council decision about the deployment of EU Battle Groups with German participation. The Bundestag would first have to take a decision about the foreign mission of German soldiers. The constitutional verdict is a kind of parliamentary shackle for the Battle Groups. (( Read On))