Pietro Faraguna

Limits and Counter Limits in the Lisbon Judgment of Bundesverfassungsgericht: one weight, two measures?

  • Abstract

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Keywords: Democracy; European Constitution; Constitutional Identity Review; Treaty of Lisbon

The so-called Lisbon Judgment delivered by the German Federal Constitutional Court does not put a definitive obstacle to ratification, however, notwithstanding this it is destined to become a historical decision because it sounds like a «yes to ratification, but...». Apart from declaring the «act extending and strengthening the rights of the "Bundestag" and the "Bundesrat" in European Union matters» incompatible with the Basic Law, the German judges theorize an «identity review» based on art. 79 III which provides for limitations to constitutional amendment. This essay tries to show how different the interpretation of art. 79 III GG was when applied to internal constitutional amendments: indeed the traditional «originalist approach» has been replaced with a new progressive concept of the inviolable core content of constitutional identity that can be used against the risk of denationalisation deriving from European integration.

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