German constitutional court shys away from ruling over ESM

The German constitutional court did not come up with a ruling over the question whether the European Stability Mechanism (ESM) conflicts with the German constitution. The hearing held in Karlsruhe showed the judges being overwhelmed by the complexity of legal challenges created by hasty decisions by leaders from the Euro zone.

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Actually, a court should decide even after the law and ignore any influence from outside. After some adventurous threats and insults by politicians this was apparently quite difficult for the judges in Karlsruhe on Tuesday. However there was some surprise over the statement of Chief Justice Andrew Voßkuhle, who said at the beginning of the trial that the court was aware of the dangers of an urgent decision. Voßkuhle: “We see it all the headlines: Germany stops rescue of the Euro! ”

Nor should we be surprised, because the headlines for judges are supposed to be entirely without significance. Yes that’s why judges are bound by any instructions and independent, because they – unlike the politicians – do not have to reach some good press. Conversely, it is one of the unwritten rules for the media that they should refrain from judicial scolding – even if they do not like one or the other judge’s decision.

Apparently Karlsruhe is more prone to the ESM by waving with some suggestions for improvement. A note Voßkuhles could be interpreted to the effect: “. Europe calls for the democratic constitutional state, as well as the democratic constitutional state, urges Europe,” It is not entirely clear where the Basic Law an uncontrolled, immune, and in a legal vacuum acting ESM Board requested; or the role of parliamentary control rights in favor of a supranational institution. And also the fixation of the judges on the 190 billion euro mark in terms of opening up the Constitution: Whether 10 or 100 or 1,000 billion € – what happens to the money, can not influence the German Bundestag. Therefore, the issue of the ESM is not the magnitude, but the issue raised by Finance Minister Wolfgang Schaeuble “global interdependence”. Here, the court would have to start really – and realize that just because of this interdependence of global politics and global finance, the limits of democratic legitimacy are actually exceeded long ago.

Here, however, the court would go into a legal gray zone. It feels obvious and probably not legal.

Therefore Voßkuhle suggested instead of a potential emergency decision within three weeks’ interim procedure “. Thus, the court could devote to the final decision of a “very sogfältigen examination” of the law – and then decide at the end of autumn.

Such procedures are not there yet, but in international treaties – and such is the ESM – such intermediate steps are quite common. The court could encourage, for example, that President Joachim Gauck, the notary must ensure than the lawful conclusion of law (and not otherwise) formulated a kind of title to his signature. This would allow the ESM to come into force, and the judges might consider.

Karlsruhe would have the advantage that one could observe that the ESM has been running in the coming months after its inception and then, depending on the development of a decision.

These are purely legal point of view, no great prospects. But if a court president to start such a far-reaching decision was the first incident entirely ephemeral headlines in the media, it seems reasonable to think that the court did not decide in a vacuum.

This can not be accused of the court. The hesitation of the judges makes visible the fundamental dilemma, in which all stakeholders are: politics, money and, to put it with his fist, “unfortunately,” the jurisprudence are in a worldwide intemperate and uncontrollable process. Schuldenmacherei to catch votes; Zockerei with virtual financial product (you see only in Spain, as there have to bite the small savers as the first in the grass –

Probably all of the foregoing, the judges will also be without significance: € crisis, global debt crisis and the moral breakdown of the banking sector are already so far advanced that there should be no more orderly retreat. Perhaps the judges felt instinctively that the game is over. you do not want to be the ones to knock down at the end with a careless movement of the casino table, because they see that the players already crawling on the ground to pick up the last Jettons. There’s even honorable judges to win anything.


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