CYIL 2014

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.

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