230 / 532
214
EMIL RUFFER
CYIL 5 ȍ2014Ȏ
whether the reasons submitted indicate with a high degree of probability that the
FCC would find challenged instruments as unconstitutional.
49
The outcome was
that the claims put forward were either inadmissible or unfounded, and so Germany
could proceed with ratification.
With regard to Art. 136(3) TFEU, it is interesting to note that the reasoning
of the FCC is rather similar to that of the CJEU, with one conceptual difference:
“
Instead, Article 136 (3) TFEU lays down both the purpose of
authorisation
and the
nature of the provision as an exceptional provision, in that the financial assistance must
serve the stability of the euro and in addition may only be permitted to be granted if
this is indispensable to the stability of the euro currency area as a whole.
”
50
The FCC
treats Art. 136(3) TFEU as an ‘authorisation’ for the Member States to act, whereby
the establishment of the ESM by the ESM Treaty is permitted. But, as we have
seen, the factual sequence defied this logic. Furthermore, to make matters even
more complicated, the FCC rephrases the purpose of Art. 136(3) TFEU as follows:
“
Regarded in this light, Article 136 (3) TFEU
confirms the sovereignty of the Member
States
in that it entrusts to them the decision as to whether and in what way a stability
mechanism is established.
”
51
This assertion is much closer to the reasoning of the
CJEU, which stated that Art. 136(3) TFEU merely “
confirms the existence of a power
possessed by the Member States
”.
52
However, can you be granted an authorisation which
at the same time confirms your sovereignty? These two notions appear difficult to be
reconciled in a single provision.
As regards the TSCG, the FCC reviewed its provisions in detail, noting that
Art. 109(3) GG also requires in principle a balanced budget without revenue from
credits, and therefore the core demand of the ‘European debt brake’ under Art. 3(1)
(a) TSCG corresponds to this constitutional obligation.
53
It also observed that “
Another
aspect that is important to the constitutional assessment is the fact that the provisions of the
Treaty on Stability, Coordination and Governance in the Economic and Monetary Union
repeat provisions of European Union law or put them into more concrete terms.
”
54
In the
light of the foregoing, the FCC did not find any violation of the GG.
5.2 The final judgement – we did the right thing
The final judgement was delivered by the Second Senate of the FCC on 18 March
2014.
55
The constitutional complaints and the
Organstreit
proceedings lodged against
the establishment of the ESM, the Fiscal Treaty and the national Acts of Assent
and accompanying legislation, against the Act approving Art. 136(3) TFEU, the
TARGET2 system, and the so-called ‘Six-pack’ were again held partly inadmissible
49
Ibid.
, para. 192.
50
Ibid.
, para. 233 (emphasis added).
51
Ibid.
, para. 236 (emphasis added).
52
C-370/12
Pringle
, para. 184.
53
BVerfG, 2 BvR 1390/12, para. 305.
54
Ibid.
, para. 309.
55
BVerfG, 2 BvR 1390/12 of 18 March 2014.