June 30, 2009: Germany's constitutional court gave a "Jein" (a combination of "Ja" and "Nein") to the EU treaty of Lisbon. The court confirmed that the treaty of Lisbon is compatible with Germany's "Basic Law", the country's constitution. On the other hand, the court ruled that the transfer of sovereignty from the duly elected Bundestag (Germany's national parliament) to EU institutions must be confirmed by the Bundestag for such transfers to be constitutionally valid. With its decision, the court rejected six cases that challenged the conformity of the Lisbon treaty's with the German constitution.

The German high court's decision on the Lisbon treaty was no surprise. The preamble and article 23 of Germany's "Basic Law" declare Germany's desire for European integration, making support for the European Union's development over the years not just part of a particular party's political platform, but a constitutionally mandated obligation. However, the high court has already established the principle that European integration must be achieved by democractic means. In 1993 the same court rendered a decision on the EU's Maastricht Treaty, which gave birth to the euro. At the time, the judges said Germany must ensure that EU rulemaking remains democratically legitimate. Following this reasoning, the European Union is not a federal state, but instead an integrated network of sovereign states.

Although the high court declared the Lisbon treaty to be constitutionally valid, it ruled that the legislation written for the treaty's approval was insufficient. The German Bundestag ratified the treaty in March 2008. The ratification has now been declared void because it did not specifically address the impending transfer of sovereignty by several provisions of the treaty.

For example, one of those provisions is the introduction of majority rule in the EU Council of Ministers, which will end the single nation veto right that has long hindered progress in streamlining the EU negotiating process. However, majority rule would prevent Germany's democratically elected government from blocking the introduction of new measures or changes to the EU structure. Instead, that authority would be ceded to the European Union and its member states. Germany's constitutional court wants that transfer – and any similar transfer enacted in the future – to be approved by the Bundestag. "Europe will now have to wait for Germany often," was how European member of Parliament Jo Leinen described the court ruling. Leinen is a Social Democrat representing Germany.

In this case, however, German chancellor Angela Merkel quickly dispelled concerns that the court's decision would mean a further delay in final ratification of the Lisbon treaty. She promised that the Bundestag would fulfill the court's demands and again ratify the treaty before the end of her government's term of office, which will be in September. Her prompt reaction is no surprise. After all, she was the one whose negotiating skills and persistence paved the way for the agreement on the proposed treaty two years ago.

Legal commentators wondered whether the court's decision would rule out future EU decisions in any of the key tenets of Germany's "Basic Law", including freedom of religion. In article 146, the authors of the German constitution hinted at the decision that may need to be made in the future if European integration transcends the bounds of German constitutionality: "This Basic Law loses its validity on the day when a constitution takes effect that has been approved by the German people by means of a free decision." Until that happens, Germany's support for European integration will have democratic limits.