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Design Flaw: Unforeseen Revolutionary Consequences of the Treaty of Lisbon

Freiburg, 17.04.2009

The Treaty of Lisbon has unforeseen consequences that have not yet been recognized. These consequences are indeed of revolutionary significance for the relationship between the European Union and its Member States: The Treaty of Lisbon transforms the Treaty on European Union into the Supreme European Constitution. The status of the constitutions of the Member States will be diminished to the status which corresponds to a constitution of a ‘state’ (in German: Land) within a federation. The treaty empowers the Court of the EU to overrule national constitutional courts in mere internal constitutional matters.

This is the result of an analysis of the Lisbon Treaty by Professor
Dr. Dietrich Murswiek, which is going to be published in the law journal “Neue Zeitschrift für Verwaltungsrecht (NVwZ)” in April. Professor Murswiek has a chair for public law and public international law at the University of Freiburg, Germany. He is the Managing Director of the
Institute of Public Law.

Professor Murswiek remarks, that the contracting States presumably have not intended this result. It seems to be a side effect of this highly complex treaty, which one might not have thought about. The dissolution of the pillar structure of the EU and the extension of the jurisdiction of the Court of the EU to most fields, which were not covered by its jurisdiction up to now, according to Professor Murswiek have the consequence, that the Court will be able to interfere into the inner affairs of the Member States. The Court of the EU would be able to decide as the supreme constitutional court on Member States’ domestic constitutional matters. The reservations made by the UK and Poland concerning the applicability of the Charter of Fundamental Rights would be practically meaningless. For the Court would be able to decide on these States’ actions simply on the basis of the fundamental values of the Treaty of the EU. These far reaching consequences of the flaw in the juridical design of the Treaty, which Professor Murswiek discovered, inflict Member States’ freedom to decide on their own constitutions and insofar violate national sovereignty in its core.

The text of Professor Murswiek’s analysis is titled “The Stealthy Development of the Treaty on European Union into the Supreme European Constitution“. It can be downloaded at


Prof. Dr. Dietrich Murswiek
Albert-Ludwig University of Freiburg
Institute of Public Law.
Tel.: +49 (0)761/203-2241 / 2237


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