In its EU-related judgements, the German Federal Constitutional Court has frequently reminded the Bundestag of its government-related responsibilities, that is, to hold the government accountable and to scrutinise executive behaviour in EU-level negotiations. During the eurozone crisis, the parliament’s budget autonomy has also entered the limelight. One the one hand, the Court has been eager to defend parliamentary democracy. On the other hand, the judicial arena seems to become an alternative arena for settling political disputes.
Karlsruhe, a medium-sized town near the German-French border, has become synonymous with the institution of the Federal Constitutional Court not only in Germany but across the European Union (EU). In recent years, we have frequently overheard political actors in Brussels wonder “What will Karlsruhe say?” even before a decision was made. This is indicative of the growing recognition of the Court as an important external actor in EU treaty-making. Moreover, there is a widespread awareness that Germany’s Eurosceptics and a growing number of academics are ready to seize every opportunity to take legal action against further integration steps and the activities of certain EU institutions. (Most recently, the European Central Bank’s bond purchasing programmes have come under scrutiny.)
This was also the case during the ratification of the Treaty of Lisbon. Both houses of parliament, the Bundestag and the Bundesrat, approved the Treaty by comfortable majorities. But Peter Gauweiler, a political maverick from the Christian Social Union (the Bavarian sister party of Chancellor Angela Merkel’s and Finance Minister Wolfgang Schäuble’s Christian Democrats), lodged a constitutional complaint immediately on the day the Bundesrat ratified the Treaty. A few more individual MPs and the Left Party parliamentary group joined the legal action.
On 30 June 2009, in a decision that is commonly known as the ‘Lisbon ruling’ (Link), the Court ruled the Treaty compatible with the German Basic Law but raised severe objections to the existing national accompanying legislation, which regulates the cooperation between the executive and legislative branches in EU matters. The Court demanded enhanced parliamentary powers of participation vis-à-vis the federal government. The process of ratifying and implementing the Treaty turned out unexpectedly controversial, triggering a “post hoc twofold politicisation – of the possibilities and limits of integration as well as the function and position of the Bundestag and the Bundesrat – that was confusing to the actors and that they had not intended” (Auberger & Lamping 2009: 272–3, own translation).
Since then, the Court has on numerous occasions reminded the Bundestag of its parliamentary responsibilities to hold the government accountable and to scrutinise executive behaviour at the EU level. During the eurozone crisis, especially given the fact that Germany is the largest creditor in the crisis resolution mechanisms, the Bundestag’s budget authority has entered the limelight. The aid measures for Greece and the creation of the temporary European Financial Stability Facility (EFSF), the European Financial Stabilisation Mechanism (EFSM) and its successor, the permanent European Stability Mechanism (ESM), have given rise to a number of constitutional complaints:
September 2011 (Link):
The Court rejected three complaints against the legal adoption of the first Greek aid package and euro rescue package. At the same time, the Court reinforced the Bundestag’s budget autonomy, stipulating that the “Federal Government is in principle obliged to always obtain prior approval by the Budget Committee before giving guarantees”.
February 2012 (Link):
The Court decided that the nine-member special panel, set up by the Bundestag as a fast-track instrument to approve urgent action by the EFSF, is in large part unconstitutional, since it undermines the legislative sovereignty on budget decisions.
June 2012 (Link):
The Court ruled that the Bundestag’s rights to be informed comprehensively and at the earliest possible time have been infringed by the government in connection with the ESM and the Euro Plus Pact. This complaint was initiated by the parliamentary group of the Greens.
September 2012 (Link):
The Court approved of the ratification of the ESM Treaty in a fast-track decision, yet stressing that, despite a good argument for secrecy, the parliament’s right to be informed must be ensured.
March 2014 (Link):
The previous decision was reaffirmed, as the Court stated that “the budgetary autonomy of the German Bundestag is sufficiently safeguarded”. (With more than 37,000 plaintiffs, this constitutional complaint against the ESM was the largest in the history of the Court.) Yet, drawing on previous judgements and for future reference, the Court marked out the legal requirements of parliamentary involvement:
“The principle of democracy requires that the German Bundestag remains the place in which autonomous decisions on revenue and expenditure are made, including those with regard to international and European liabilities. […] [I]t follows from the democratic basis of budget autonomy that the Bundestag may not consent to an intergovernmentally or supranationally agreed automatic guarantee or performance which is not subject to strict requirements and whose effects are not limited, and which – once it has been set in motion – is removed from the Bundestag’s control and influence. Furthermore, the principle of democracy requires that the German Bundestag is able to have access to the information which it needs to assess the relevant background and consequences of its decision.”
June 2016 (Link):
After almost four years of legal proceedings, the Court ruled in favour of the Outright Monetary Transactions (OMT), an unlimited bond-buying programme which the European Central Bank launched in 2012 to battle the eurozone crisis. In a preliminary ruling in March 2014, the Court said that the OMT programme “does not appear to be covered by the mandate of the European Central Bank” and the “purchase of government bonds of to provide relief to individual Member States […] appears, in this context, as the functional equivalent to an assistance measure of the [EFSF and ESM] – albeit without their parliamentary legitimation and monitoring” (Link). The case was referred to the European Court of Justice, which gave a positive judgement regarding the conformity with primary law. Despite concerns, the Federal Constitutional Court followed the European Court of Justice’s line and ruled that the European Central Bank does not “manifestly” exceed its competences. Regarding the constitutional rights of the Bundestag, the Court stipulated:
“Whether the budgetary autonomy of the German Bundestag […] and its overall budgetary responsibility can be affected by the OMT Decision or its implementation with regard to possible losses of the Bundesbank, is not clearly foreseeable at present.”
These decisions seem to suggest that the Court acts as a strong defender of Germany’s parliamentary democracy. However, the role played by the Court is certainly a more ambiguous one. In all of the above-mentioned legal proceedings, MPs – or even parliamentary party groups collectively – appeared as plaintiffs. We should, therefore, take into account that the Court’s indirect “invitation for more lawsuits can become a political option for the opposition … to transfer political decisions into legal ones” (Auberger and Lamping 2009: 289, own translation). In other words, if the Federal Constitutional Court is no longer a last resort but becomes an alternative – more ‘convenient’ – arena for settling disputes between legislative and executive actors ‘once and for all’, we will face serious problems of democratic legitimacy.
Caroline Bhattacharya (née Werner) is a PhD candidate at the Department of Political and Economic Studies, University of Helsinki. She is currently visiting the DEI at the School of Politics and International Relations in UCD. In her doctoral research, which is funded by the Finnish Cultural Foundation, she explores the concurrent contestation and decontestation of EU issues in the German Bundestag during the eurozone crisis. She tweets @CarolineBha.
Auberger, Tobias & Lamping, Wolfgang (2009), “Die richtige Aufführung auf der falschen Bühne? Das Bundesverfassungsgericht und die Politisierung der europäischen Integration”, der moderne staat – Zeitschrift für Public Policy, Recht und Management, 2(2): 271–91.