Germany’s constitutional saga

We do recall the summer of 2009, when Germany’s Constitutional Court blessed the Lisbon Treaty but also set out the conditions to further European integration by asking more rights to Bundestag in deciding on European legislature. That shortened an enthusiasm of many European federalists as clear boundaries between Germany’s and the European Union’s legislation were once again set. The roots may be also found in 1993 Constitutional Court’s decision on EU founding Treaty signed in Maastricht where it said that a democratic legitimacy of EU institutions must be supported by a feedback from the national parliaments.

However next to the legal conservatism of Germany’s Constitutional Court, Germany and the whole EU, were entering another battle with global financial crisis. Even before the ratification of the Lisbon Treaty, the EU governments in May 2009, in the midst of crisis, were in a hurry to approve a global EUR 500 billion package of aid in their struggle to save Europe from another collapse.

Since then many things have changed. Unstable financial markets triggered another wave of sovereign crisis which directly threatened the stability of institutions governing a single European currency – the euro. The battle turned into a fight to preserve what was created two decades ago while domestically addressing increased debt levels and going at different extent through economic recession. In this atmosphere the Governments of the euro zone were granting aid to EU bailout countries and even set out a new EU rescue fund – European Financial Stability Facility (EFSF), which later was boosted into European Stability Mechanism (ESM).

The EU was fighting back by corresponding actions and their constitutionality continuously was raised, making German Constitutional Court a part of the process of European integration. In October 2011 Constitutional Court issued another ruling and in the same thinking stressed once again that any decision by EFSF having an impact on national budget would have to be approved by the German Parliament’s budget committee. This year, in July it has asked to delay the ratification of ESM and the EU Fiscal Pact until its ruling.

And the ruling was held today on 12 September 2012, by which Germany’s Constitutional Court rejected complaints on ESM and Fiscal Treaty as largely unfounded and opened a green light to end a ratification procedure. Nevertheless it continued in the same reasoning as before and defined the boundaries on ESM by explaining that German liabilities should not exceed a current level of EUR 190 billions without an approval of the Parliament’s lower chamber.

By its reasoning the Constitutional Court defended once again the right of German people to exercise state authority through elections and by appropriate institutions of legislature. In the same spirit this argument also cleared the relationship between the Constitutional Court and the process of European integration itself, which it looks it can proceed further as far as is exercised through legitimate institutions of German legislature. According to the Court, EU provisions “do not conflict with national budgetary autonomy of the parliaments of the Member States which enjoy direct democratic legitimation, but instead they presuppose it”.

In our particular case it follows by the Court that the “Bundestag must individually approve every large-scale federal aid measure on the international or EU level made in solidarity resulting in expenditure”. For that it must receive “sufficient information concerning the decisions with budgetary implications for which is accountable” and this “limitation of liability sufficiently ensures that the entry into force of the Treaty alone does not establish an automatic and irreversible procedure”. End of saga.

 

Photo: Winfried Rothermel/AP

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