EU construction — страница 8

positive and negative integration as well. It is these two mutually reinforcing asymmetries which are conceptually central here, and which are featured in the descriptive and explanatory efforts generally accepted by jurists and political scientists.   For the federalists, 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 the renationalisation of Community law.   It is 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?  

The perpetuity clause   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 1949 cannot, 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.   The very point of Community law lies in its suprastatal character. 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 principle over provisions adopted within each nation. The Union Treaty takes the fulfilment 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 be guaranteed.   Democratic accountability   Democracy, if it its not to remain as merely

principle of accountability, I 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 apolitical 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 state 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 whish 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, an politically altogether…   Did the Court solve the problem?   Defending the democratic deficit means having to reconcile a suprastatal legal and monetary order with a demand for democratic accountability within a

framework composed of democratically constituted nation states. Has the Court succeeded in squaring the circle, by thus combining the requirements of marginality and predictability with an interpretation of the suprastatism of Community law as provisional – in the sense of being conditional and revocable? My answer to that question is no, essentially for two reasons. One is philosophical in character and concerns the manner of reasoning itself. The other is theoretical: even within the form of reasoning chosen by the Court, it is possible to formulate a decisive criticism. The Constitutional Court thus cannot be said, in my opinion, to have solved the problem of the democratic legitimacy of Community law.   According to Article 14.2 of the ECB charter, the member