COPIAS DE SEGURIDAD CON HERRAM IENTAS DEL SISTEMA

Directly after the decision of the Bundesverfassungsgericht of June 2012, the Bundes-

tag voted for the ratification of the ESM and Fiscal treaties. Immediately afterwards, a

considerable number of concerned citizens and some members of the Bundestag brought constitutional complaints and the members of the opposition party Die LINKE brought an inter-institutional dispute, all contesting the constitutionality of those trea- ties and of some of the implementing legislation. In September 2012, the Court decid- ed on an injunction brought by those complainants and applicants. The aim of the in- junction was to suspend the ratification until after the Court had decided on the main action, i.e. to avoid that matters became irrevocable before the constitutionality of the issues under review had been settled.

The Court’s general approach to injunctions is to assess only the potential conse- quences of granting or refusing the injunction without assessing the likely outcome of the case, so as to avoid pre-empting the decision in the main action. However, in the present case the potential repercussions either way reached far beyond Germany or its constitutional system: if the Court rejected the injunction, the ratification would go ahead and Germany would become bound by those treaties under international law. Should they ultimately prove to be unconstitutional, it would be very difficult for Ger- many to disentangle itself from those legal and financial obligations - the latter ones potentially of considerable proportion. On the other hand, if the Court granted the in-

467

ibid 124.

468 _{BVerfG, ‘ESM/ Fiscal Treaty (Injunction)’ [2012] BVerfGE 132, 195 Please be advised that the para-}

graph numbering in the English translation available on the BVerfG’s website differs considerably from the one in the German original. E.g. in the German original the Court’s assessment of the facts (Part B) begins at para. 85, in the English translation it begins at para. 189. For simplicity’s sake, only the paragraph numbers of the German original will be referred to.

junction, the ratification would be suspended and, without Germany, the treaties could not enter into force. The economic repercussions of that scenario would affect not just Germany but the whole EURO zone. Should the treaties then prove to be con- stitutional, the resulting economic and political damage would likely be impossible to remedy.469 In cases such as this one, the Bundesverfassungsgericht tends to derogate from its usual practice and to conduct a summary examination of the main action in order to establish whether there was a ‘high degree of probability’470 for a success or dismissal and then granted or refused the injunction accordingly.

Its summary examination led the Court to conclude that the actions appeared mostly admissible but not likely to be well founded on the merits. It therefore rejected the in- junction with the proviso that the Federal president submitted the following two res- ervations when submitting the German ratification instruments:

1. … dass keine Vorschrift dieses Vertrages so ausgelegt werden kann, dass für die Bundesrepublik Deutsch- land ohne Zustimmung des deutschen Vertreters höhere Zahlungsverpflich- tungen begründet werden;

2. die Regelungen der Artikel 32 Absatz 5, Artikel 34 und Artikel 35 Ab- satz 1 des Vertrages zur Einrichtung des Europäischen Stabilitätsmecha- nismus nicht der umfassenden Unter- richtung des Bundestages und des Bundesrates entgegenstehen.

1. … that no provision of this Treaty may be interpreted in a way that es- tablishes higher payment obligations for the Federal Republic of Germany without the agreement of the German representative;

2. the provisions under Article 32 paragraph 5, Article 34 and Article 35 paragraph 1 of the Treaty establishing the European Stability Mechanism do not stand in the way of the compre- hensive information of the Bundestag and of the Bundesrat.471

The Court considered the applications admissible only insofar as the complainants had argued that the ratification of the treaties would violate their rights under Article 38 by transferring too much decision-making power to the supranational level which would make it impossible for the Bundestag to realise its budgetary responsibilities. The judges agreed that this created at least the possibility of a violation of the core of the

469

ibid 88.

470

ibid 192 of the English translation.

principle of democracy which in turn constituted a violation of the Grundgesetz’s iden- tity as highlighted in the decision on the Lisbon treaty.472

The Court largely recalled its comments made in the decisions issued in September 2011 and February 2012 with regard to the nature of the Bundestag’s budgetary re- sponsibilities. It confirmed that they - as well as the right to be kept informed by the

Bundesregierung - were an essential element in the Grundgesetz’s efforts to ensure

the realisation of a strong democracy and thus part of the Grundgesetz’s identity pro- tected by Article 79 (3).473 However, the judges rejected the applicants’ arguments that the changes made to Article 136 TFEU were unconstitutional simply because they con- stituted an alteration of the existing structure of the currency union and as such went beyond what the Bundestag had agreed to with the original act of ratification and what the Bundesverfassungsgericht itself had declared to be constitutional in its re- view of the Maastricht treaty. They pointed out that the regime originally established by the treaty was by no means the only viable design option and that it was well within the remit of the Member States as the ‘masters of the treaties’ to review and change the existing regime should it prove unsuitable to the task.474

With regard to the Fiscal Treaty, the Court agreed that it would oblige its parties to pursue a specific budgetary and fiscal policy. But this did not constitute a per-se viola- tion of the principle of democracy. The judges pointed out that in 2009, the Bundestag and Bundesrat themselves had amended the Grundgesetz to include a provision that put considerable restrictions on the federal and Länder parliaments with regard to bor- rowing. The reasoning behind these limits was to prevent current parliaments from in- curring debts that would severely limit the financial manoeuvrability of future parlia- ments and thus their democratic power to shape the lives of their citizens. Hence, the Court had no objection to such restrictions being created not merely by national con- stitutional law but also by international or European law since those obligations were freely entered into. The primary political responsibility for assessing if and how far

472 ibid 91–92. 473 ibid 111. 474 _{ibid 118.}

Germany should bind itself in this fashion rested with the legislator and it enjoyed a considerable amount of discretion in this respect.475

Applying those considerations to the actions under review, the Court concluded that they were not unconstitutional. However, it found the ESM treaty to be slightly ambig- uous with regard to the overall amount each Member State could be made liable for and with regard to the secrecy required by the members of the governing bodies. Therefore it required the Federal President to clarify those points at the moment of ratification by submitting the two reserves formulated in the operative part of the judgement (cf. above).

5. Injunction against the approval of ESM grants to Cyprus (17 April