La regresiva "Sentencia Lisboa" como "Maastricht-II" anquilosada
The Author gives a commentary, from a critical point of view, about the Lisbon Decision of the Federal Constitutional Court (FCC). He begins by taking into account the controversy provoked by the Decision in Germany both on the doctrinal and political levels. After that he goes on to point out the p...
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| Main Authors: | , |
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| Format: | Article |
| Language: | Spanish |
| Published: |
Junta de Andalucía: Instituto Andaluz de Administración Pública
2009
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=3263715 |
| Source: | Revista de derecho constitucional europeo, ISSN 1697-7890, Nº. 12, 2009, pags. 397-429 |
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| Summary: |
The Author gives a commentary, from a critical point of view, about the Lisbon
Decision of the Federal Constitutional Court (FCC). He begins by taking into account
the controversy provoked by the Decision in Germany both on the doctrinal and
political levels. After that he goes on to point out the positive and negative profiles
of the Decision. Referring to the positive aspects he mentions the consideration of
comparative Law, the inference of the democracy principle from human dignity, the
invocation of the «European common» constitutional traditions and the use of the
concept of «responsibility for integration» among other questions.
Referring to the negative aspects �which leads him to define the Decision as a
retrospective one and as «Maastricht II»� the author considers that the decision is
constructed in relation to a general theory of the State, which is very Germanic but
outdated. According to the author, the FCC does not take into account the doctrinal
debate that provoked the Maastricht Decision. Because of that, the FCC remains
anchored in an obsolete notion of State as well as sovereignty, and as a result, it has
lost the opportunity to intervene in the European debate using German «constitutional
reason» instead of German «state reason». He also considers that the concept of
democracy used by the Court, based on the representative democracy, is questionable
and that the Court is not conscious of the function that democracy includes today in
relation to the protection of minorities. The author criticizes likewise the
underassessment that the FCC produces of the citizenship of the Union as well as
the concept of constitutional identity used by the Court. According to the author,
nevertheless, the FCC cannot assume the position of sole incumbent for guaranteeing
German constitutional identity. At last the Decision contradicts the evolutional
process of constitutionalization of Europe and remains anchored to a retrospective
theory of State instead of using a European constitutional theory that cannot be
unilaterally developed, but rather elaborated by the 27 scientific communities of
Europe. In sum, European juridical unity in its diversity will be not strengthen but
endangered by the Lisbon Decision. |
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