CYIL 2014

THE INTERGOVERNMENTAL AVENUES OF EUROPEAN INTEGRATION… 5. Challenge to ESM and the TSCG before the German Constitutional Court The Organstreit proceedings 46 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. 47 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 . 48 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 46 Proceedings relating to disputes between supreme Federal institutions / organs ( Organe ). 47 BVerfG, 2 BvR 1390/12 of 12 September 2012 (operative part of the judgement). 48 Ibid. , para. 253. This led to the joint declaration made on 27 September 2012, upon the entry into force of the ESM Treaty.

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