What will the German Constitutional Court do on the Recovery Plan
Karlsruhe knocks on the EU door again for the Recovery Plan: trouble ahead? The study by Gian Luigi Tosato, professor of EU law, taken from International Affairs
It is not new what now lies ahead. The interventions of the German Constitutional Court marked a series of milestones in the European integration process: the Maastricht Treaty (1993), aid to Greece (2011), the creation of the European Stability Mechanism (2012), the OMT program (2016). ), Quantitative Easing (2020).
Each time, the Karlsruhe rulings have aroused apprehension. It was feared that they could deal a severe blow to Europe's progress. In truth, this has not happened: albeit with a series of distinctions and reservations – sometimes even unpleasant, such as the recent complaint to the Court of Justice – the German Court has ended up giving the green light to the contested European measures.
Now the decision on own resources (Ord) adopted by the Council on 14 December 2020 is on the scene. It is useless to recall the importance of this provision, which contains, among other things, the authorization to the Commission to issue 750 billion of European public debt. It is on this instrument that the Next Generation EU (Ngeu) is based, and its essential component, the Recovery and Resilience Facility (Rrf), the device on which the recovery expectations of the Member States, especially the weakest ones, are based (read also Italy), to cope with the devastating effects of the pandemic.
The Decision on own resources finds its legal basis in art. 311 of the Treaty on the Functioning of the European Union (TFEU). This provision establishes, in the first paragraph, that the Union equips itself with the means necessary for its ends; in the second paragraph, it provides that the Union budget, without prejudice to other revenues, is financed entirely from its own resources; finally, in the 3rd paragraph, it regulates the procedure for the adoption and entry into force of the Decision. In particular, it is envisaged that unanimous approval by the Council, after consulting the European Parliament, is not enough; ratification by all Member States according to their respective internal rules is also required.
And here the German court enters the scene. The Decision, having completed its European procedure regularly (consultation of the Parliament, unanimous approval of the Council), passed to ratification by the Member States. 16 have already carried it out (including Italy), and also in Germany the two parliamentary branches of the Bundestag and the Bundesrat have pronounced themselves in favor by a large majority. Only the final approval of the President of the Federal Republic was missing, but this was temporarily blocked by the decision of the judges of Karlsruhe of 26 March last.
The decision in question originates from an appeal lodged by a large group of German citizens, led by Bernd Lucke, a German politician and economist, formerly a member of the far right of Alternative für Deutschland in the European Parliament. As is well known, the German system, unlike the Italian one, admits direct access of individuals to the Constitutional Court. The applicants ask that the Court recognize the illegality of the Ord and block its ratification in Germany as a precaution.
On which arguments the appeal is based, it is not possible to know precisely. This cannot be inferred from the order of the Court, which – by reason of its nature – lacks reasoning. Quite well-founded indications can however be drawn from the positions taken by Bernd Lucke in the European Parliament and from what was reported by those who probably had access to the texts of the appeal.
Apparently, Ord is contested in terms of non-compliance with the principle of attribution (Ultra-vires Kontrol) and that of the infringement of fundamental principles of the German constitution (Verfassungsidentitat Kontrol). These are two recurring criticisms in appeals against European acts before the Court.
In our case, under the first profile we complain that the Ord would have gone beyond the attributions conferred by art. 311 Tfue. The reason is identified in the fact that this provision would authorize the Council to decide solely on its own resources. Conversely, these would not be those that derive from the proceeds of Union bonds, to be considered other people's resources. In other words, there should be no confusion between Eigenmittel (permitted) and Fremdenmittel (prohibited).
As for the second aspect, the sovereign right of the German Parliament over the national budget would be compromised; this would be exposed to liabilities decided autonomously by the Commission and which could result in burdens for German taxpayers of up to 750 billion euros. Hence the alleged infringement of the country's constitutional identity.
It should be noted immediately that the decision of the Court of 26 March does not take these arguments into consideration at all. In fact, it does not rule either on the main appeal of constitutionality (which requires other times), but not even on the request for a precautionary measure (einstweiligen Anordnung). It adopts a measure which it describes as Hängebescluss. It is an instrument envisaged in the German system (I am not aware of the Italian one) in anticipation of the precautionary one and aimed at not nullifying its effects: a sort of pre-pre decision on the merits.
This is not the place to consider the issues raised by the applicants on the merits. At first sight they seem surmountable and, to a large extent, already examined and surpassed (albeit – it has already been said – with some reservations) by the Karlsruhe judges themselves. The European Commission was immediately convinced that the Own Resources Decision has solid legal foundations. Well then: the problem of timing remains. German ratification is currently blocked. We hope that even under the pressure of European public opinion, the German Court will rule as soon as possible and in the desired direction. The timely and long-awaited start of Next Generation EU disbursements is at stake.
Article taken from International Affairs, here the full version.
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/mondo/che-cosa-fara-la-corte-costituzionale-tedesca-sul-recovery-plan/ on Mon, 05 Apr 2021 05:19:24 +0000.