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Threading the Constitutional Needle?
Re4lections on German Constitutional Law and Debt Mutualization in the Eurozone Crisis
Peter Lindseth, University of Connec4cut The Poli4cal Economy Forum of New York The Union Club, June 20, 2012
Source: @Pawelmorski, hHp://lockerz.com/s/163158669
Solu%ons to the Eurocrisis? A Venn Diagram
‘Germans must understand that bank recapitalisa%on, European deposit insurance and debt mutualisa%on are not op%onal; they are essen%al to avoid an irreversible disintegra%on of Europe’s monetary union’.
Neil Ferguson and Nouriel Roubini, Financial Times, June 8, 2012
A second joke
‘A physicist, a chemist, and an economist are stranded on a desert island. And they come across a can of soup they need to open to avoid starva%on . . . ’
Are Eurobonds the policy equivalent to assuming a . . .
Source: hEp://www.bild.de/themen/specials/euro-‐bonds/poli%k-‐nachrichten-‐news-‐fotos-‐videos-‐19546248.bild.html (using Google Translate)
Parliamentary Groups: Current Bundestag
(Merkel’s coali%on = the CDU/CSU + the FDP)
Major Decisions of the BVerfG on European Integration
• Maastricht Treaty (October 1993)
• European Monetary Union (March 1998)
• Lisbon Treaty (June 2009)
• Greek Bailout (September 2011)
• European Financial Stability Facility (EFSF) (February 2012)
• European Stability Mechanism (ESM) (June 2012)
The Demokratieprinzip and the “eternity clause” of the German Basic Law • Ar#cle 79(3) provides: “Amendments to this Basic Law affec4ng the division of the Federa4on into Länder [federalism] … or the principles laid down in Ar4cles 1 [fundamental rights] and 20 [democracy] shall be inadmissible [i.e., prohibited].”
• If the Court finds that Ar#cle 79(3) applies, then the only op%on is a new cons#tu#on, which would require a referendum under Ar#cle 146: “This Basic Law, which since the achievement of the unity and freedom of Germany applies to the en4re German people, shall cease to apply on the day on which a cons4tu4on freely adopted by the German people takes effect. ”
What does this mean practically?
• “Ultra Vires” Review: ensuring that limits of power conferred on the EU in the trea%es are strictly observed (especially important in view of the so-‐called “no bailout clause” in the EU Treaty, which I’ll talk about in a moment)
• “Cons#tu#onal Iden#ty” Review: ensuring that any transfer of power to the EU does not undermine the “cons%tu%onal iden%ty” of Germany as a self-‐governing democra%c state (required by the demands of the “eternity clause” and the Demokra4eprinzip)
Debt-‐Mutualization and “Ultra Vires” Review
• The BVerfG would almost certainly find that debt-‐mutualiza#on violates the “no bailout” clause (Ar%cle 125 TFEU), which provides: “A Member State shall not be liable for or assume the commitments of central governments, regional, local or other public authori4es, other bodies governed by public law, or public undertakings of another Member State, without prejudice to mutual financial guarantees for the joint execu4on of a specific project.”
• Thus, the BVerfG would almost certainly require an amendment to the EU trea#es before it would permit any such debt-‐mutualiza%on
Debt-‐Mutualization and “Constitutional Identity” Review
• The BVerfG has made clear that control over the na#onal debt is a core democra#c preroga#ve of the Bundestag, which it cannot transfer in an open-‐ended and indeterminate fashion without viola%ng the Demokra4eprinzip and the “eternity clause” (Greek Bailout Decision, paras. 124-‐25)
• More specifically, the joint-‐and-‐several liability dimension of Eurobonds would violate the Court’s prohibi#on against unbes&mmte haushaltspoli&sche Ermäch&gungen (“indeterminate budgetary empowerments”), because they would enable other na%onal parliaments and/or the European Parliament to add to the German na%onal debt without specific prior authoriza%on of the Bundestag for each debt issuance.
• Thus, to adopt debt-‐mutualiza%on, the BVerfG would likely require a cons#tu#onal referendum under Ar#cle 146 of the Basic Law.
Is there any way to “thread the constitutional needle”?
• It is clear that any form of debt-‐mutualiza#on/Eurobonds will require a treaty change (to repeal/amend the “no bailout clause” of Ar%cle 125 TFEU)
• But are there any op%ons that would avoid the need for a cons#tu#onal referendum in Germany (one very unlikely to succeed)?
• The conven%onal wisdom is that, for debt-‐mutualiza%on to have any chance to avoid triggering a referendum, it must be limited in #me and scale, thus avoiding the BVerfG’s prohibi%on against unbes4mmte haushaltspoli4sche Ermäch4gungen (“indeterminate budgetary empowerments”)
What are some of the options?
• A European Debt Redemp#on Pact: public debt up to 60% of GDP will con%nue to be the responsibility of individual countries; debt above 60% of GDP will be joint and severally guaranteed, subject to fiscal-‐discipline condi%ons; 25-‐year %me limita%on
• Euro-‐Bills: joint and several guarantee for short-‐term (1-‐yr) debt only; all debt beyond 1-‐yr would remain the responsibility of individual countries; again subject to fiscal-‐discipline condi%ons
• Euro-‐Coupons: mutualize the interest payments, not the principal; countries issue bonds separately, at whatever interest rates market demands; but interest payments pooled and shared rate calculated on the basis of weighted average; credit-‐worthy issuers will subsidize interest rates of others; again subject to fiscal-‐discipline condi%ons
Are we still just “assuming a can opener”?
• As Megan Greene, Senior Economist, Roubini Global Economics, recently pointed out, these proposals do nothing to address the banking crisis or the balance of payments crisis. But she adds they “could buy some &me and that's what the Eurozone needs more than anything else” (par%cularly given the ever decreasing half-‐life of other measures – see, e.g., market reac%on to the Spanish bank recapitaliza%on)
• But more importantly, here’s what Angela Merkel said in a recent statement to the Bundestag: “Quite apart from the fact that these seemingly simple proposals ... are unfeasible in cons&tu&onal terms, they are completely counterproduc&ve. They would make mediocrity the yards4ck for Europe. We would thus be forced to abandon our goal of maintaining prosperity in the face of interna4onal compe44on.”
Closing Re4lection . . .
“Fiat jus&&a, et pereat mundus (let jus&ce be done, even if the world perishes) is a dangerous moAo.”
-‐Mar%n Wolf, Financial Times (June 9, 2012)