German plaintiff fears ‘self-surrender’ of Bundestag

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The German Constitutional Court is currently looking into whether or not the Greek aid package was legal. Plaintiff Markus Kerber spoke to EURACTIV Germany about delays to the court ruling and possible implications for the German parliament.

Markus Kerber is a professor of public finance and economic policy at the Technische Universität in Berlin.

Together with the think-tank Europolis, he filed several constitutional complaints against the Treaty of Lisbon, financial aid for Greece and the euro zone's rescue mechanism, the European Financial Stability Facility (EFSF).

The 50-strong group of German activists is also trying to derail the creation of a European Stability Mechanism (ESM), an EU decision which would immortalise loans granted to troubled economies, like Greece and Ireland.

"On our side we can only tell you that a total of 50 citizens have joined these complaints and we are proud of that," Kerber said in an interview with EURACTIV Germany.

"The latest supporter is former president of the Bundesverband der Deutschen Industrie Hans-Olaf Henkel. Now, Europolis has really managed to stage a lawsuit of the people."

So far, the court has not ruled on the complaints and Kerber deplored the delays to the ruling.

"I can only regret the long delay, as the loans to Greece were already extended from three to seven years and the associated risks have therefore grown. The rescue mechanism for the stability of the euro has been tapped and will be tapped again, and still the German Constitutional Court has not ruled on the legality of these arrangements."

He said he assumed that the rescue mechanism would have to be used for other eurozone members. "Portugal is already knocking at the door" and for others it is only a matter of time, he said.

Limited treaty change

When EU heads of state and government agreed in December 2010 to transform the current mechanism into a permanent facility, the EFSF, they decided to do so via limited treaty change.

This meant EU leaders could avoid a referendum in Ireland and other complex ratification procedures in the member states.

Instead of wholesale treaty change, they added a clause to Article 136 of the EU Treaty: "The member states whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality."

'Self-surrender' of German parliament

Kerber's position on this "blank check" to Brussels is that it will hold the German taxpayer liable without imposing a time limit or a cap on cost.

Further, he called the acceptance of this kind of treaty change an act of "self-surrender" on the part of the German parliament.

"This general authorisation is an attempt to hold the German taxpayer liable without a limit to time or cost and to allow Brussels to decide on this. Such a treaty change is both a problem from a constitutional point of view and an act of self-surrender by the German parliament."

The Bundestag is currently verifying whether the approval of such limited treaty change requires a majority of two thirds in both the Bundestag and the Bundesrat, which represents German Länder.

Kerber says it does and refers to a decision of the parliament's legal service, according to which the change concerns the fundamental functioning of the EU and makes a simple majority insufficient.

"The decision of the documentation service of the Bundestag on this matter is unequivocal: changing Article 136 of the TFEU [Treaty on the Functioning of the EU] requires a two thirds majority because it is changing the fundamentals of the EU. I agree with that decision."

A decision by the German parliament is expected in the coming weeks. No date has yet been set for the ruling of the Constitutional Court on Kerber's complaints.

As the Greek crisis raged, EU leaders in May last year established a rescue mechanism worth €750 billion, the European Financial Stability Facility (EFSF), to protect the euro from collapsing under the weight of accumulated debt.

The EFSF, as well as the separate €110 bn rescue plan for Greece, was put together despite the "no bailout clause" enshrined in the EU treaties.

Recognising the legal weakness of the system, EU leaders agreed to create a permanent financial safety net from 2013, admitting it would mean changing the EU treaties. 

Article 136 of the Lisbon Treaty states that the EU Council of Ministers – representing the 27 member states – can adopt measures concerning eurozone countries in order "to strengthen the coordination and surveillance of their budgetary discipline" and "to set out economic policy guidelines for them".

  • 24-25 March 2011: Leaders to set up permanent rescue mechanism for euro zone at spring summit.

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