National oversight over EC legislation is not democratic - because it cannot and will not work. Head of the German Constitutional Court says so

Professor Hans-Juergen Papier, president of Germany's constitutional court, speaking at Berlin's Humboldt University last week, identified a major problem with the proposed EU Treaty / Constitution.

First he pointed that the principle of democracy "is for the first time dignified with its own section in the treaty." Good thing.

Then he pointed out that democracy as defined by the Treaty / Constitution will not work. Bad thing.

National parliaments have the power to scrutinise proposed EU laws and say whether they think the EU is acting in an area where action would better be taken at member state or regional level, the so-called subsidarity principle.

This treaty determines the rules ;

1. MPs are sent legislative proposals by the commission for examination.
2. If they object they must react within 8 weeks.
3. If they do, the commission is not bound to act.

Only if one third of national parliaments get together to complain about an EU law, must it be reviewed. The unelected commission must give reasons if it intends to keep the law.

If there is a disagreement the European Court of Justice may also be called on by member states to look into whether the subsidiarity principle is being upheld. Which may take a little time.

There were 18,167 regulations and 750 directives between 1998 and 2004 . If legislation continues at this rate (for surely it will not slow down) such arrangements will prove impractical.

An 8 week deadline for delivering an opinion on an EU law considered as going too far from parliament is likely to prove too short in practice, while the numerous parliament opinions needed to get a law reviewed would require "considerable international coordination" in the two month timeframe. Not to mention the legilsators burden of delivering their own State's legislation.

The backup of reference to the European Court of Justice, is very unclear . Will they , when presented with a case, stick to looking "purely at the verification of the subsidiarity question" or whether whether the EU has competence in the particular area.

Professor Papier, who is the Head of the German Constitutional Coourt and has some experience says that the dynamics of subsidiarity are connected to the "ever closer" union principle. This he says means that there is "from the point of view of member states no fixed limit guaranteed to the creeping transfer of competences [to EU level]."

Professor Papier welcomes the EU's charter of fundamental rights is a binding part of the new treaty, but identifies London and Warsaw's decision to opt out of the charter "reveal(ing) the deeply rooted mistrust of a union and a court" that pulls "ever more competences to it."

At first glance this mistrust is misplaced , but maybe after consideration it cannot be dismissed.

For example in 2005, the EU's highest court ruled that a national law on the possibility of limiting the work contracts of older people did not only break the EU's non-discrimination law but also the general legal principle of non-discrimination.

Professor Papier points out that the time period for implementing the EU non-discrimination law had not yet run out for member states so the court had used " the general legal principle of community law." That is it , chose to override the national rights in favour of EU / Community "interests".

Professor Papier quoted statements from an attorney general of the European court of justice, quoted by the judge, and said that this "principle" was less derived from legal texts but from a "platonic legal heaven," with a vagueness concerning both their content and their actual existence.

Which is increasingly what plagues the rulings of the Supreme Court in the US.

Papier is famous for calling for less legislation ... he says , that to have better rights we need fewer laws , that frequently we seek comfort from fear which often results in less liberty.„Es ist häufig Bequemlichkeit und Furcht vor der eigenen Verantwortung, ja letztlich Furcht vor der Freiheit, die Menschen nach neuen Gesetzen rufen lässt.“

Scandals start up the machinery of legislation - „Bei jedem Skandal wird die Gesetzgebungsmaschinerie angeworfen.“ but more laws don't mean more rights and often lead to less liberty..."„sind nicht gleichbedeutend mit mehr Recht, führen aber nicht selten zu weniger Freiheit.“