231 / 532
215
THE INTERGOVERNMENTAL AVENUES OF EUROPEAN INTEGRATION…
and for the remainder unfounded. The FCC confirmed its previous findings that,
despite the liabilities assumed, the budgetary autonomy of the German
Bundestag
was sufficiently safeguarded.
However, it carried out a detailed review of the ESM operation (analysis of the
ESM Treaty and its functioning form the most extensive part of the judgemnet)
and called for arrangements under budgetary law to be made in order to ensure that
possible capital calls pursuant to Art. 9 of the ESM Treaty could be met fully and
in time within the agreed-upon maximum limits, so that a suspension of Germany’s
voting rights in the ESM bodies would be effectivelly excluded.
56
On the issues of Art. 136(3) TFEU, the FCC leaned towards the notion of
‘authorisation’ and stated that “
the introduction of Art. 136 sec. 3 TFEU and the
establishment of the European Stability Mechanism constitute indeed a fundamental
reshaping of the existing Economic and Monetary Union, because it detaches its concept,
albeit to a limited extent, from the principle of independence of the national budgets which had
characterised it before
”.
57
But ultimately, the FCC shows a considerable judicial restraint:
“
Considering the competent constitutional organs’ margin of appreciation, the Federal
Constitutional Court must, in general,
respect the decision of the legislature to
supplement the monetary union with the option of active stabilisation measures
,
and the associated prognosis that such acts can guarantee and further develop the stability
of the monetary union
”.
58
As regards the TSCG, the FCC recalled that its essential content goes along with
the requirements of German constitutional law and of EU law. The TSCG grants
the EU institutions no powers which affect the overall budgetary responsibility
of the German
Bundestag
and does not force the Federal Republic of Germany to
make a permanent commitment regarding its economic policy that can no longer
be reversed.
59
6. EU Law Highway Revisited – incorporating intergovernmental
arrangements into the EMU foundations
The Fiscal Treaty is a ‘standard’ or ‘classical’ international treaty which was concluded
outside the framework of EU law, despite its close connection with certain measures
adopted under the Eurozone governance or in the wider context of the EMU.
However, its makers apparently did not see this state of affairs as a permanent
solution. To this end, Art. 16 TSCG provides as follows:
“
Within five years, at most, of the date of entry into force of this Treaty, on the basis of
an assessment of the experience with its implementation, the necessary steps shall be taken,
56
Ibid.
, para. 183.
57
Ibid.
, para. 180. The FCC is explicitly referring to paras. 73 ff. of the
Pringle
judgment and implies its
different interpretation of Art. 136(3) TFEU. A good example of a subtle judicial dialogue, one might
assume.
58
Ibid.
, para. 181 (emphasis added).
59
Ibid.
, paras. 244-245.