CYIL 2014

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.

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