This document analysed the situation prior to the Lisbon Treaty.

The controversial Anti-Counterfeiting Trade Agreement exceeds the European Union competence. National Constitutional Courts may invalidate aspects of ACTA.

German Federal Constitutional Court ruling

The recent German Federal Constitutional Court ruling on the Treaty of Lisbon suggests the German Court may deem parts of ACTA unconstitutional. The German Federal Constitutional Court emphasises that the Community can not enlarge its competence itself. With ACTA, the Community exceeds its competence. Like the French Constitutional Court ruled out the French Hadopi ("three strikes") law, the German Court (and possibly other national constitutional courts) may rule out parts of ACTA.

Analysis of the ruling

The Community can not enlarge its competence itself. To enlarge the Community's competence, a new Treaty has to be written, then ratified.

Under Lisbon, the Council can unanimously decide to move topics from unanimity to qualified majority, no ratification will be required for this. Normally it takes a parliament (ratification) to give up a veto, with this procedure parliaments are not needed.

The German court now rules that in such cases the German representative can only vote in favor of that, after a law is adopted. This safeguards parliamentary involvement. The German parliament can stop Germany losing its veto, can stop losing its influence.

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