As negotiations over the EU's new 'fiscal compact' begin in Brussels, the Bundestag promises to make its voice heard. EURACTIV Germany spoke with Patrick Sensburg, a Christian Democratic MP who chairs the Subcommittee on European Law.
Patrick Sensburg has been a member of the Bundestag (CDU) since 2009. He is chairman of the Subcommittee on European Law and a member of the Legal Affairs Committee.
He was interviewed by EURACTIV Germany's Michael Kaczmarek. The original version in German is available here.
At the December summit it was decided that 26 EU countries would conclude by March 2012 an intergovernmental agreement, the 'fiscal compact', in addition to the EU treaties. How will this treaty be ratified in the Bundestag and the Bundesrat?
The exact procedure depends on the progress of the discussions and the deal's content. I assume that the fiscal compact will be ratified as an ordinary international treaty, not as EU law. I see a parallel to the Schengen Treaty. Such an international treaty would have to be adopted in the Bundestag and Bundesrat.
The process might look like this: The international agreement is presented to the Bundestag in the competent bodies. Then it is debated in parliament after being discussed first in committee. It will be voted as a treaty under international law under Article 59, paragraph 2 of the Basic Law.
Is the Bundestag also involved in the design of this intergovernmental agreement negotiated between the 26 governments?
I am starting from the premise that the Bundestag is involved early and is a player. In our discussion on Thursday on the request with regard to the participation rights of the Bundestag in matters concerning the European Union [17-C-201], we explicitly point out that the federal government is also working with intergovernmental processes in very close relations with the German Parliament.
This means that the Parliament has to be briefed early and comprehensively. That is very important. The participation of the Bundestag in addressing the fiscal political pact represents its first test.
How is it possible, legally speaking, for 26 member states to adopt rules that are explicitly different in the EU treaties? I am thinking especially of reversed qualified majority [voting] to block sanctions for violations of the stability and growth pact.
There are actually European and international lawyers who say that this is not possible because EU law takes precedence. They argue that such a new treaty amounts to a conflict between EU law and international law.
So, according to them, this separate agreement would not be binding. If a state were to say, 'I do not consider myself in the fiscal political pact', then it would indeed violate the new international treaty, but it would be acting in accord with European law.
So does this international agreement have any value at all?
Yes, I think so. International law – and this includes EU law as a special kind of international law – subsist on the fact that it is accepted and respected by the treaty partners. Nevertheless there are little means of enforcing international law.
Take the example of the qualified majority that you mentioned. According to the EU treaty you need a majority to agree on sanction. But according to the separate agreement you need a majority to block sanctions for violations of the stability criteria.
Everything is fine as long as the signing parties keep their promises. But if a signing party decides that it does not accept the new stability criteria anymore, you could not accuse it of violating EU law. Nevertheless, this state would still be violating a commonly agreed consensus.
As you said, EU law takes precedence over international law. Why did the 26 heads of government not choose the easier and legally cleaner way of a mutual personal commitment as they did with the Euro Plus Pact?
A separate treaty would have more impact since it leads to a binding agreement, in contrast to the Euro Plus Pact. The intention is to include most agreements in the EU treaties. In this case it has not proved so easy otherwise they would have chosen this way.
To use the Protocol 12 – as intended by the Commission – is not the right way in my opinion. As to the fiscal compact, I personally do not see a problem of a legal clash with existing EU law but a problem of enforceability.
Due to the urgency, the EU countries seek a solution without any major modification of existing EU treaties. There will be various levels of solution, on the one hand, the agreement of the 26 member states. The consensus achieved there would also be a good step for more stability in the monetary union.
On the other hand, the separate pact will be difficult to enforce because the European Court of Justice could not rule on the compliance of the agreement. The court would have to consider the conflict with the EU treaties. In the long term, one could try to gradually incorporate the agreement reached between the 26 EU countries into the EU treaties.
Is there not a danger that Britain stands against such a special agreement before the European Court of Justice?
I see no right of action for Great Britain. It could theoretically exert an infringement procedure, but where are the EU treaties violated? Britain also has nothing to fear from the separate agreement, because it is not in the monetary union.
The Commission has already announced that it is very critical of any special pact. Do you fear a legal action by the Commission against the fiscal compact?
The European Commission is the guardian of the treaties. It's their job to accompany this agreement critically. The Commission has to see whether the new pact clashes with the EU treaties. In my view, the new agreement is not inconsistent with the intent of the EU treaties, but enhances them.
Schengen also went beyond the EU treaties but was not contrary to EU law. It would be different if the 17 euro countries would agree to a contract where they reject the Maastricht criteria. This would contravene EU law. But it is precisely the opposite that is planned.
Is there a risk that the planned stricter stability criteria will be diluted during the negotiations in order to avoid potential legal conflicts?
I hope this does not happen. The overarching goal is: The member states need to consolidate their budgets, to limit their debt and to stabilise the euro. If the target is desired by all parties, you will also find legal solutions by consensus. That’s why a separate treaty might be a practical solution.
The adaptation of the EU treaties towards a fiscal union would be desirable, but we need to consider the question of time. We need tools now to stabilise the euro. The markets will not wait.