THE CONSTITUTIONAL ISSUE:WHEN EUROPEAN leaders arrived in Brussels last night, one of the most important players was absent.
Germany’s constitutional court in Karlsruhe has been a silent partner in EU affairs since last year, when its red-robed judges delivered a landmark ruling permitting German ratification of the Lisbon Treaty, but under strict conditions.
When Berlin officials talk about the European Union these days, they are thinking as much about Karlsruhe as Brussels.
Dr Angela Merkel is negotiating in Brussels with a sword of Damocles over her head and her demands for robust new stability-pact measures are motivated by two concerns. The first is that German taxpayers will revolt unless the EU agrees new rules guaranteeing they will not be hit in the pocket for every new Greek-style crisis.
The second concern is Karlsruhe. Berlin officials are convinced only tough new stability-pact rules will swing in their favour a pending ruling in Karlsruhe. A negative ruling could call into question the legality of emergency euro-zone rescue measures to date. “Our European partners have to recognise that there are legal limits we have to respect,” said Thomas Silberhorn, European spokesman of Bavaria’s Christian Social Union.
The limits arise from a reminder in last year’s Lisbon ruling that adopting the new treaty did not set aside previous treaties, in particular the Maastricht Treaty and the court’s ratification ruling from 1993.
When a group of economists filed a constitutional complaint in Karlsruhe last May, they argued that emergency aid to Greece and the subsequent euro-zone rescue fund breached Maastricht’s “no bailout” clause that Karlsruhe had underlined. Karlsruhe refused to grant an immediate injunction on the matter, as the applicants requested, leaving Germany free to support the Greek and eurozone rescue plans.
Karlsruhe has given Dr Merkel a window of opportunity to act, said Prof Peter Selmer, professor emeritus of constitutional law at the University of Hamburg. But, he says, the court “remains close on her tail”.
“The constitutional court is not a typical court but one that acts in full knowledge of the political consequences of its decisions” said Prof Selmer. “If the court had ruled on the injunctions in May, it might well have ruled against help for Greece and the euro zone, calling the grounds for aid illegal. It let the injunctions lie, but has yet to deliver its final word on the matter.”