German legal eagles sink their claws into the Maastricht treaty: Court challenge means Bonn could be the last to ratify

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The Independent Online
GERMANY'S constitutional court is again toying with the possibility of causing political chaos, this time not just in Germany, but throughout Europe. Klaus Kinkel, the Foreign Minister, can expect to be taken through his paces when he appears before the court in Karlsruhe tomorrow to answer questions about the Maastricht treaty, and whether it undermines the essence of German sovereignty.

It seems likely Germany will drag out the Maastricht misery and that it will be last to sign the treaty. In the words of Der Spiegel magazine, 'The model pupil in the class is in danger of coming in behind the laggards, the English and the Danes.'

Bonn is still determinedly in favour but a small band of opponents have succeeded in overturning the applecart by challenging the constitutionality of the treaty under German law. The challengers are an unusual mixture - Greens, far-right Republicans, and, most notably, Manfred Brunner, a former senior official at the European Commission.

This is not the first time recently that the court has paralysed the politics of the country, a habit that has caused increasing irritation. Der Spiegel talked of the 'typically German' habit of sorting everything out in a courtroom. The Suddeutsche Zeitung complained: 'It cannot go on like this . . . Not the courtroom, but the parliamentary debating chamber is where questions of national destiny should be decided.'

The brunt of the complaint before the Karlsruhe court is that the country is giving up too many of its powers to bureaucrats in Brussels. Mr Brunner, who was sacked from the Commission because of his anti- Maastricht statements, now delights in the rumpus he has caused with his 75-page legal submission. Equally, Bonn is embarrassed that ratification will have to be delayed: parliament has approved the treaty, which cannot be signed by the President until the court gives its say-so.

The more Bonn exhorts the judges to reach a quick decision, the more they find other pressing business. The government originally wanted to settle the matter in a couple of weeks. But the court has been considering the issue for more than six months and looks set to delay its decision until after the summer break. Government officials say they have 'no influence' on the timetable.

The court has given the government a list of barbed questions, such as: 'What possibilities of influence will the German state organs, in particular the parliament, continue to have on the development of European integration after the Maastricht treaty comes into effect?' Or: 'Did the federal government express any constitutional reservations during the negotiations on the treaty? What legal effects did such statements have?'

In previous cases, at least, the court has been keen not to bring down the whole house of cards. Thus, when there were complaints to the court about German participation in United Nations operations in Bosnia and Somalia, the court virtually ignored the legal niceties on which it was theoretically ruling and gave judgments which were blatantly political. The judges explicitly referred to their desire to avoid international embarrassment for Germany.

Now, too, few expect the court to take the ultimate step of accepting Mr Brunner's complaint, which would mean re-negotiating the treaty from scratch. Already, however, the public has begun to lose patience with the court. A poll indicated that two-thirds of Germans believe Karlsruhe should not play such a dominant role; only one in five believes it is right for the politicians to scurry so frequently to m'learned Freunde in Karlsruhe.

Thus, if the judges detonate a Maastricht explosion, they might blow themselves up too. The judges clearly enjoy ruffling the politicians' self-confidence but a sense of self- preservation, if nothing else, means they are unlikely to push German politics completely over the edge.