EU construction — страница 7

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in the descriptive and explanatory efforts generally accepted by jurists and political scientists.   For the federalist, symmetry is to be achieved through a democratisation of the suprastate. The confederalist is critical as well. But for him/her, balance is to be attained through a democratisation of the suprastate. The confederalist is critical as well. But for him/her, balance is to be attained through the renationalisation of Community law.   But is it possible to justify the ratification of the Maastricht Treaty with the claim that this treaty- notwithstanding its obviously suprastatist and asymmetrical features- accords even so with the principle of a steadfastly constituted democracy, as this demand is formulated in the Basic Law.   German democracy assumes

a distinctive character on account of its historical background. It is constituted in perpetuity, and with a strong emotional attachment to the inviolability of its fundamental provisions. No popular referendums may take place within its framework. The Basic Law of 1949cannot, moreover, be altered in respect to its core content.   The accession of the Federal Republic to the EU must therefore take place in a form permitted by the applicable articles. It is not possible to solve the problem through political means- as has been done in other member states- by allowing a referendum to undermine the central constitutional provisions safeguarding the right of the people to determine their fate. What was viewed in Denmark and in France as a political question to be decided by

plebiscite was seen in Germany as a problem of constitutional law, to be decided by the Constitutional Court.   Decisions in the Council of Ministers can be adopted by majority rule. Furthermore, Community law not only has direct effect in the member states, but also enjoys priority in the principle over provisions adopted within each nation. The Union Treaty takes the fulfillment of these three requirements as a given. At the same time, the Court states as a condition for its verdict that the provisions of the Basic law in respect to democratic accountability are guaranteed.   Democratic accountability   Democracy, if it is not to remain as merely a formal principle of accountability, is dependent on the existence of certain pre-legal conditions, such as a

continuous free debate between opposing social forces, interests and ideas, in which political goals become clarified and change course... and out of which a public opinion emerges which starts to shape a political will. This also means that the decision- making processes of the organs exercising sovereign powers and the various political objectives pursued can be generally perceived and understood, and therefore that citizens entitled to vote can communicate, in their own language, with the sovereign authority to which they are subject....   If, as at present, the peoples of the individual states provide democratic legitimation through their national parliaments, limits to the extension of the European Communities´ functions and powers are then set by virtue of the

democratic principle. Each of the peoples of the individual states is the starting point for the public authority relating to that people. The states need sufficiently important spheres of activity of their own in which the peoples of each can develop and articulate in a process of political will- formation which it legitimates and controls, in order to give legal expression to what- relatively homogeneously- binds the people spiritually, socially and politically together... Economically, socially and environmentally, the member states are closely bound up with one another. The financial markets can on good grounds be expected to react most powerfully should a country make use of its constitutional right wholly or in part to forbid the application of Community law within its

territory.   The constitutional Court departs even from such realism when it assumes the demand for the democratic accountability is satisfied through the merely theoretical possibility of partial withdrawal form Community law. For the Court cannot adduce any example of a parliament which has ever dared defy the provisionally established suprastatal order. On no occasion and in no setting, to the best of my knowledge, has any national decision been made to close the borders of a member state to Community law.   Ch.5  Defending the democratic deficit   The EU is a multi-level political system which is characterized by relations of asymmetry not just between a suprastatal legal development and the lack of any corresponding democratic accountability, but between