The Federal Constitutional Court also lets some proceedings lie longer than is good for efficient legal protection. But sometimes the delay leads to interesting constellations in the Karlsruhe boardroom. When the EU decided to take tougher action against the smuggling system in the Mediterranean in 2015, the German Foreign Minister was still called Frank-Walter Steinmeier (SPD). The Greens group, then in opposition, sued the federal government because they felt they were inadequately informed by the Foreign Office about the details of the new European route.
This Tuesday, seven years later, the case finally made it to the oral hearing in Karlsruhe – but now the Greens are co-governing and the Foreign Minister’s name is Annalena Baerbock. So green fights with green. Only the second plaintiff faction, the left, remained in opposition.
In April 2015, under the impression of a refugee disaster – a ship sank off the Libyan coast, hundreds died – the European Council decided to strengthen the Union’s presence at sea. Tugboats should be arrested, their ships confiscated and destroyed. The mission was later named “Operation Sophia”. A crisis management concept was drawn up for the political discussion, but it initially remained confidential – at least for the members of the Bundestag. From the point of view of the Left and the Greens, the paper should have been presented to them at an early stage. The left-wing parliamentary group in the Bundestag also demanded the submission of a letter from the Turkish Prime Minister from autumn 2015, which dealt with the initiation of the so-called “refugee deal” between the EU and Turkey.
The fundamental question of how government and parliament are interlinked when it comes to European foreign policy is to be clarified. This could be a promising field, as a look at the biggest European crisis of the day shows: Russia’s attack on Ukraine has already led to increased efforts by the EU in the area of security and defense.
The State Department says: “We comply with our information obligations.”
The Basic Law only gives an apparently clear answer to this: the government must inform the Bundestag and Bundesrat comprehensively and at an early stage on “matters of the European Union”. But is the “Common Foreign and Security Policy”, abbreviated to “Gasp” in EU jargon, really such an EU matter? Because as European as Gasp may sound, the truth is that the states rule here. Ultimately, European foreign policy is just a shell that is filled out by the will of the member states, said Heiko Sauer, legal representative of the federal government.
To put it another way, can the government simply ignore parliament in these matters because the Bundestag is also not responsible for foreign policy at the national level? The special right to information was granted to the Bundestag in 1992 as compensation for the losses it suffered as a result of European integration – because a large part of the standards and regulations were to be made “supranational” in Brussels from then on, where the national governments also make decisions , not the parliaments. In the Federal Government’s interpretation, this means that such rights to information are not necessary where Parliament has not handed over anything to Europe – namely in foreign and defense policy.
Susanne Baumann, State Secretary in the Foreign Ministry, assured that the government takes the information from the Bundestag very seriously: “We are fulfilling our information obligations.” On the decisive issue, however, it remained in line with the previous government. The EU’s foreign policy is simply not communitized. “The EU is certainly perceived as a foreign policy actor, but it is no more than the sum of its member states.” So no losses for the Bundestag. However, Parliament will be informed in a general way, Heiko Sauer seconded.
The influence of the Bundestag is small
In a fundamental decision from 2012, however, the Federal Constitutional Court granted the Bundestag far-reaching information rights, at that time it was about the European rescue package. The court expressly left open what this means for European foreign policy, but Peter Michael Huber, then as now the rapporteur in the second senate of the Federal Constitutional Court, sees parallels here. “At the time, we were driven by the thought that the government shouldn’t be playing on gangs at European level and should be allowed to present its own parliament with a fait accompli.” That is why the concept of “informed participation” was chosen.
Other members of the Senate also signaled a certain openness to more parliamentary participation. Judge Christine Langenfeld raised the question of whether the complex European voting processes and the “obscurity of the whole thing” mean that the Bundestag actually has even less influence on foreign policy matters at European level than at national level. So that in the end, European processes would only be approved by Parliament. And Vice President Doris König pointed out that the EU Parliament has practically nothing to say about common foreign policy. “Shouldn’t the national parliament be involved all the more?” A verdict will be announced in a few months.