CYIL 2014

213

THE INTERGOVERNMENTAL AVENUES OF EUROPEAN INTEGRATION…

5. Challenge to ESM and the TSCG before the German Constitutional Court

The

Organstreit

proceedings

and the constitutional complaints challenged German

and European legislation dealing with the establishment of the ESM and the Fiscal

Treaty, measures of the ECB and certain alleged omissions of the federal legislature

and the Federal Government. This court saga had two acts: (i) the interim judgement

of 12 September 2012, in which the FCC (Second Senate) refused, under certain

stipulations, to issue a temporary injunction against the ratification by Germany of

the ESM Treaty and the Fiscal Treaty and against the national Acts approving and

accompanying the Treaties; and (ii) the final judgement of 18 March 2014, in which

the FCC essentially confirmed the previous judgement and pronounced the claims

either inadmissible or unfounded.

We shall not deal with all the elements of these complex legal proceedings, which

were predominantly concerned with the budgetary competences and autonomy of

the German parliament (

Bundestag

and

Bundesrat

) under the German Constitution

(

Grundgesetz

, hereinafter as the “GG”) and related issues of monetary and fiscal

sovereignty. Instead, we shall selectively address only some points relevant from the EU

law perspective and regarding the interpretation of the respective intergovernmental

instruments (ESM Treaty and the TSCG).

5.1 The interim judgement – green light for ratification

According to the stipulations contained in the judgment of 12 September 2012,

with regard to the ESMTreaty it had to be ensured that (i) the amount of all payment

obligations of the Federal Republic of Germany under the ESMTreaty remain limited

to its share in the authorised capital stock of the ESM, which amounts to EUR

190.0248 billion; and (ii) that the provisions on the inviolability of all official papers

and documents of the ESM and the professional secrecy of all persons working for

it do not stand in the way of the comprehensive information of the Bundestag and

of the Bundesrat.

The FCC elaborated in detail on the budgetary prerogatives of the

Bundestag

and requested that, in order to meet the constitutional requirement of determining

the burdens on the budget in a clear and definitive manner, the Federal Republic of

Germany must ensure the required clarification in the ratification procedure, and it

must ensure that it is only bound by the ESM Treaty in its entirety if no payment

obligations that go beyond the liability ceiling can be established without the prior

consent of the

Bundestag

However, the FCC gave the green light to the ratification of all the instruments

at stake (i.e. Decision 2011/199 amending Art. 136 TFEU, ESM Treaty and the

TSCG), since it decided to carry out a summary review at an early stage to determine

Proceedings relating to disputes between supreme Federal institutions / organs (

Organe

BVerfG, 2 BvR 1390/12 of 12 September 2012 (operative part of the judgement).

Ibid.

, para. 253. This led to the joint declaration made on 27 September 2012, upon the entry into

force of the ESM Treaty.