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Courting controversy: National judiciaries test European constitutions

October 31, 2013 12:19 pmby Tony Barber

True, the judges sitting on Germany’s constitutional court have been going in this direction since 2009, when they issued a judgement on the EU’s Lisbon treaty. But before the eurozone crisis erupted in full force, such rulings were fairly uncontroversial. The judges could reasonably argue in 2009 that they were simply testing if the new EU fundamental treaty was compatible with the democratic principles of Germany’s 1949 constitution, known as the Basic Law.

Now that the eurozone crisis has pushed the German government and the European Central Bank into once unimaginable measures to rescue the 17-nation currency bloc, the constitutional court has parked itself on wholly different territory. The judges would indignantly contest this, but when the court opened hearings in June into thelegality of the ECB’s actions to protect the eurozone, it looked from the outside very much as if the judges had appointed themselves the supreme law lords of European integration – to the exclusion of any other EU or national legal authority.

In their defence, the German judges have never come close to issuing a judgement that delivers a mortal blow to European unity. A more unusual example is Portugal’s constitutional court, which this year has struck down four economic reform and austerity measures crafted by the centre-right government on the advice of the nation’s international creditors. At bottom, what the court is saying is that wage, pension and benefit cuts violate the rights of Portuguese citizens, enshrined in the 1976 constitution, to a certain degree of state-funded social and economic protection.

The court appears uninterested in whether its judgements fly in the face of the eurozone’s policy prescriptions for saving the currency union and regenerating economic growth. It skates over the fact that in 2011 Portugal was made a ward of its eurozone partners and the international financial community. The court simply wants to uphold the dignity of citizenship conferred on the Portuguese people after decades of poverty and right-wing authoritarianism before the 1974 revolution.

In Spain, whose 1978 constitution also guarantees basic economic rights (perfectly understandable after Franco’s 1939-75 dictatorship), the constitutional court is also reviewing the legality of recent government austerity measures. But what are most interesting in Spain are the disputes that are raging over the court’s political profile and its rulings on Catalonia’s bid for “sovereignty”.

According to the Spanish constitution, the government nominates two of the court’s 12 members, and the two chambers of parliament nominate eight, with the other two named by the judiciary’s highest professional body. Clearly, there is ample room here for political influence over the court. What angers the socialist opposition and some of Spain’s regions, however, is that Francisco Pérez de los Cobos, the court’s new president, did not reveal his membership of the ruling Popular party when he spoke at his confirmation hearings in 2010. Not only does his neutrality appear in question, but the controversy is feeding a scandal that has poisoned Spanish politics all this year over who has been financing the PP, and whether top-level PP politicians have been receiving illegal cash payments.

Then the court decided in September that Pérez de los Cobos should continue to hear cases on Catalonia’s push for more autonomy, or even independence, even though he had made contentious statements about Catalan attitudes to Spain before his appointment.

To sum up, the eurozone crisis is causing national constitutional courts to wade ever deeper into sensitive and often highly divisive political questions. But the courts seem to be paying little attention to the impact of their judgements on Europe as a whole. They need to remember that, if the EU and eurozone are to hold together, upholding the rule of law must be a common endeavour.