TCD Lecture: The ESM and its Constitutionality (Dr Peter M Huber / German Federal Constitutional Court), Dublin - Hoofdinhoud

There has been no fundamental change in the Federal Constitutional Court’s view on the division of competence between the EEC (later EU) and the Member States since it first started dealing with the European integration at the beginning of the 1970s. There may have been a change in tone over the past 40 years. The cornerstones of the FCC’s approach, however, remain unchanged. The Maastricht judgement (12th October 1993), the Lisbon judgement (30th June 2009), the judgement concerning supporting measures for Greece and the euro rescue package (7th September 2011) and the judgment on the ESM and the fiscal compact (12th September 2012) are the main landmarks on this way. At the base of this long line of case law is a concept of the EU as an association of sovereign states (Staatenverbund) in which the Member States are ‘masters of the treaties’ and cannot be deprived of this role but for an act of the constituent power i.e. a referendum according to Article 146 Basic Law.

Accordingly, the European Union possesses only such competences conferred upon it by the Member States (principle of conferral). The activities of the EU are democratically legitimate only insofar as they keep within the scope of this programme of integration. The programme of integration, however, grants EU law precedence over national law, which in principle applies to national constitutions as well.

The conceptual basis of precedence is in all Member States - although they differ in its concrete design - an act of national ratification (Rechtsanwendungsbefehl), in Germany the Act Approving the EEC Treaty and its subsequent amendments. Taking this into account, it seems inevitable that limits to pecedence should arise from national law. Over the past 20 years, the national constitutional identity and the programme of integration have proven to be relevant limits.

The Basic Law sets substantial requirements for the division of competence between the EU and the Member States and, as a necessary consequence, for the democratic legitimation and control of EU decisions as well, which happens primarily through the German Bundestag. These requirements are also valid for other supranational organizations such as the ESM.

In a more specific way the democratic principle as it is laid down in art. 20 par 1 and 2 of the Basic law entails the requirement that the Bundestag remains the place where decisions on the amount of loans and guaranties which Germany may give for other countries, their duration and their conditions have to be decided on in order to make a public debate and accountability possible.

During the ongoing crisis, this may slow down responses to the financial markets actual or perceived demands. This means, as the president of the IMF, Christine Lagarde, stated in an interview, that democracy is indeed proving to be an impediment to overcoming the crisis. Yet, this is a price we must be willing to pay for the sake of our and our children’s freedom and self determination.

This is a jointly organised lecture by the IIIS and the Trinity Long Room Hub. This lecture series is an associated event of the Irish Presidency of the Council of the EU and will run weekly until June. Admission is free and all are welcome.