In an expertise prepared for plaintiff Peter Gauweiler, Prof. Dietrich Murswiek argues that the ESM already does have a banking license provided for in its treaty, and calls on the constitutional court to have a ruling on Sept. 12, which prevents the bank function of the fund from going into effect. In in case the court should decide against an injunction, what is indispensable however, says Murswiek, are restrictive clauses which President Joachim Gauck would add to his ratifying signature. These clauses would also secure the right of Germany to exit from the ESM treaty, as soon as efforts are made to activate the fund’s emergency drawing rights against the vote of the German government.
The German finance minister should furthermore be bound not approve any ESM measures without having an explicit mandate by the German parliament, before. All automatic procedures outlined in the fund’s treaty—like the ESM council’s decreeing changes in individual countries’ share of guarantees and liabilities, or expansions of borrowing/lending capacities—should be prohibited by clauses securing the rights of the German parliament to veto.
An unrestricted ESM would, Murswiek warns, imply liability risks for Germany “ranging not in the billions but trillions.” which the court must create a firewall against already in its Sept. 12 ruling, and the more so in its ruling in the main case, which is expected sometime next year.