German Federal Court Could Throw ESM Out the Window

Karlsruhe Federal Court strengthens parliamentary rights, offers basis to throw ESM out of the window

In what is de facto a smashing defeat of the ESM as such, and provides for courageous parliamentarians an opportunity to refuse voting on the ESM altogether, the Karlsruhe Federal Court decided this morning, that the German parliament has to be informed from now on “as early as possible” on international negotiations, such as the ESM and allow participation in these matters for the federal parliament, before the government concludes treaties or issues internationally binding declarations. The court said, that a stronger involvement of parliament into such treaties compensates for the shifting of competence towards the European Union.

While this latter reasoning is quite murky, and the decision only applies to new cases, it de facto implies, that the government violated the law by deciding on the ESM in February 2011 by the eurozone countries, which was agreed upon one month later, without the German parliament’s participation. Now, this month, the ESM is to be ratified in the parliament, without any participatory rights of the parliament as to its content. Germany will have to pay this year 8,7 bio. € cash (for starters).

The Green party had sued against this, referring to art. 23 of the Grundgesetz, which says, that the government has to inform the parliament early on planned treaties, “in matters of the European union”. The government had maintained, that the ESM treaty is no treaty between souvereign countries and that therefore this does not apply. The Court said, that while all countries agreed to it on the basis of international law, the EU and the European Court of Justice are by it empowered with new rights to oversee the financial program implementation for troubled EU-countries, which belongs into the context of the Integration program of the European treaties.

What will be the consequence of this decision for the upcoming ESM and Fiscal Pact ratification in the federal parliament, will have to be seen. However, it might be just used by the SPD and Greens, to get further concessions by the government, on their own cranky course of “more Europe”. But, in principle, the parties could now reject voting on the package on July 29 altogether, saying that it lacks any legal substance and that it should go back to square one – or better of course, eliminated altogether.

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