The ESM is seen as central to solving the euro crisis, including giving the European Central Bank (ECB) the muscle to buy Italy and Spain's debt to bring down their borrowing costs. ECB chief Mario Draghi has made clear that ESM was needed to buy debt of troubled countries.
In rejecting injunction requests from 37,000 plaintiffs, the court said ratification of the ESM could go ahead with the "proviso" that German liability be limited to €190 billion, as agreed in the ESM treaty.
The plaintiffs, including eurosceptics from Chancellor Angela Merkel's ruling centre-right coalition and Left Party hardliners, had argued that the treaties expose Germany to unlimited financial liability and cede too much sovereignty to European authorities.
The court also requested guarantees that there will be no increase in German financial exposure to the bailout without previous approval from both houses of the German parliament, rejecting a confidentiality clause in the treaty.
“My first reaction would be that this probably cannot be done by just agreeing in the German implementation law that the conditions are met,” said Guntram Wolff of the Brussels-based think tank Bruegel. “It may require changes in the ESM treaty or a new side treaty to the ESM.”
German critics argued that the German liability was not limited to €190bn as explicitly stated, but could be higher if the issue price of the authorised capital stock is increased.
“My suspicion is that it will significantly delay the implementation of the ESM,” added Wolff in his blog.
Other analysts, however, consider the court has reached the best decision possible for the ESM. “. It contains no nasty surprises but merely strengthens the role of the Bundestag,” said Sony Kapoor, Director of the Economic Think Tank, Re-Define.
Kapoor said he decision has no implications for the ECB or its possible interventions in the bon market, nor does it preclude the possibility of the ESM being granted a banking licence at some future date.
However, he added, ESM remains inadequate in size and has a cumbersome decision-making process that gives Germany, France & Italy a de-facto veto on some critical decisions.
Irrespective of the strings attached to the court ruling and the cautious welcome of some analysts, markets greeted the news and the euro rose hitting a new four-month high against the dollar, at $1.29.
When it comes into effect, the ESM will be a 700 billion-euro firewall against the spread of the three-year-old debt crisis. Only German ratification is still pending. The decision clears the way for Germany's President, Joachim Gauck, to sign the ESM into law.
Jean-Claude Juncker reportedly said that the ESM could start working from 8 October.
Sigh of relief
European Parliament leader Martin Schulz announced the news to MEPs during the State of the Union address by European Commission president José Manuel Barroso in Strasbourg. The Court’s decision was greeted with a thundering applause and an evident relief on the face of political leaders.
German leaders expressed also relief at the court decision. German foreign minister Guido Westerwelle from the liberal party (FDP) said the court ruling was a wise decision expressing the pro-european spirit of the German constitution.
"The limitation of Germany's liability within the ESM was necessary. Germany's capability should not get worn out," he added.
"Finally the ESM can start working and support the process of stabilization during the Euro crisis,” said Frank-Walter Steinmeier, leader of the group of social-democrats in the Bundestag.
Steinmeier welcomed the clear court ruling and that the decisions taken by the parliament were accepted by the court. Steinmeier also added that he sees the rights of the German parliament strengthened.