## Facts

- Multiple applicants, including Bundestag members, a parliamentary group, and private citizens, challenged legislation approving and implementing the Treaty of Lisbon.
- Applicants claimed the treaty and related laws impermissibly transferred sovereign powers, diluted democratic self-government, and violated individual voting rights protected by Basic Law Art. 38(1).
- The Federal Government, Bundestag, and Bundesrat were the principal respondents.
- The court reviewed: (1) the statute approving the treaty, (2) related constitutional amendments concerning EU integration, and (3) an accompanying statute regulating Bundestag/Bundesrat participation in EU decision-making.
- The consolidated judgment was issued by the Federal Constitutional Court’s Second Senate on June 30, 2009.

## Issues

1. Whether the Treaty of Lisbon and its approval statute violated constitutional limits protecting democracy and statehood, including the “eternity clause.”
2. Whether EU decision-making under Lisbon (including majority voting and flexibility/passerelle mechanisms) undermined democratic legitimacy required by the Basic Law.
3. Whether the accompanying statute adequately secured Bundestag and Bundesrat participation rights required for EU integration decisions.
4. Whether the court could review EU acts for exceeding conferred competences (ultra vires) and for infringing constitutional identity (identity review).

## Decision

- The court held the statute approving the Treaty of Lisbon was compatible with the Basic Law, subject to constitutional limits identified in the judgment.
- The court held the treaty did not create a European federal state; the EU remained a treaty-based association of sovereign states.
- The court upheld the related constitutional amendments as consistent with the eternity clause.
- The court held the accompanying participation statute was partially unconstitutional because it did not sufficiently secure Bundestag and Bundesrat participation in key EU decisions.
- The court required legislative revision strengthening parliamentary participation before Germany could complete ratification.
- The court reaffirmed its authority to conduct ultra vires and identity review as safeguards of constitutional democracy and state functions.

## Legal Principles

- EU integration is constitutionally permitted only within a treaty-based association of sovereign states; Member States retain ultimate control over the scope of competences.
- Democratic self-determination protected by the Basic Law limits transfers of powers that would leave Germany without sufficient political latitude for core policy decisions.
- Certain essential state functions are constitutionally protected against wholesale transfer, including decisions on war and peace, core criminal law and policing, substantial fiscal decisions, and fundamental areas of education, media, and religion.
- Basic Law Art. 38(1) protects not only formal voting rights but a right to effective democratic self-government; EU authority may not hollow out the substance of parliamentary democracy.
- The principle of conferral governs EU competences; Member States retain “competence-competence,” and EU institutions may act only within conferred powers.
- The court may, as a last resort, treat EU acts as inapplicable domestically if they manifestly exceed conferred powers (ultra vires) or infringe constitutional identity.
- Bundestag and Bundesrat have a constitutional “responsibility for integration” requiring effective participation, particularly regarding flexibility clauses, passerelle clauses, simplified treaty revision procedures, and other competence-expanding mechanisms.

## Conclusion

The court permitted ratification of the Treaty of Lisbon while conditioning Germany’s participation on strengthened parliamentary control over EU decision-making, and it confirmed constitutional limits on integration enforced through identity and ultra vires review to preserve democratic self-government and essential state functions.


Lisbon Treaty Case, 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR 182/09 (BVerfG 2009)