Blog Post

A press review ahead of the German Constitutional Court decision

On 11 and 12 June, 2013 the German Federal Constitutional Court (FCC) will consider the legality and conformability of the European Stability Mechanism (ESM) and the ECB’s Outright Monetary Transaction programme (OMT) in particular. In this press review, we summarize the key issues.

By: Date: October 15, 2014 European Macroeconomics & Governance Tags & Topics

On 11 and 12 June, 2013 the German Federal Constitutional Court (FCC) will consider the legality and conformability of the European Stability Mechanism (ESM) and the ECB’s Outright Monetary Transaction programme (OMT) in particular. In this press review, we summarize the key issues.

On 11 and 12 June, 2013 the German Federal Constitutional Court (FCC) will once again debate and consider the legality and conformability of the European Stability Mechanism (ESM) in general and the ECB’s Outright Monetary Transaction programme (OMT) in particular. In September last year, the court preliminarily approved the ESM on condition that German financial liabilities have to remain within the amount set by the German parliament (Court decision from September 2012 here). In the current hearing the FCC will consider several constitutional complaints (“Verfassungsbeschwerde”). According to the FCC’s press statement (here), the court will evaluate (1) scope and boundaries of the ECB’s monetary policy mandate, in particular the independence of the ECB and the OMT programme, (2) consequences of the OMT programme on the parliament’s budget right, (3) the role of the Bundesbank in the European System of Central Banks, and (4) possibilities of the parliament and the government react and respond to the ECB’s policies. The Court will invoke a joint assessment of whether or not the ECB acts ultra-vires and violates Germany’s constitutional identify. 

The focus of this hearing will be on the ECB’s rescue policies and specifically whether or not the ECB’s OMT is indirectly circumventing the prohibition of financing euro zone countries’ budgets. While the programme eases borrowing costs of struggling states, critics stress that it also eases pressure on governments to reform their fiscal policies and render the independent central bank dependent on governments’ policy choices. The ECB argues that its primary goal to safeguard price stability has to be accompanied by secondary goals, in particular maintaining the stability of financial markets.  The Bundesbank, by contrast, argues that OMT exceeds the boundaries set by the ECB’s mandate. In December last year, a statement by the Bundesbank in which the ECB’s OMT program is criticised was leaked and published by Handelsblatt.

The case is receiving wide coverage in the German press. The Welt writes that it is unlikely that the Court will deviate from its previous stance regarding the ESM, but that the constitutional complaints regarding the ECB’s OMT programme are a more delicate matter. The newspaper considers four potential decision scenarios: (1) The complaint is not admissible because the ECB is not subject to German but EU law and, hence, only the European Court of Justice (ECJ) has the competence to rule on the ECB’s policy. This scenario, however, is deemed highly unlikely because the FCC has already raised concerns that OMT might indirectly finance government deficits and because of the detailed structure of the hearing itself. (2) If the Court were to decide that the ECB is acting beyond its mandate, the ECB’s policies will no longer be covered by the German consent to EU treaties and OMT will violate German basic law. Such a decision, however, would necessitate the involvement of the ECJ, which in the past has always adopted a pro-European stance. But thus far the FCC has never referred a case to the ECJ. In extremis, the court may force the German government to complain against the OMT at the ECJ. (3) The FCC might consider ECB policies at odds with German basic law because they deprive the Bundestag of its budget right. In the eyes of the Handelsblatt such a verdict also seems unlikely because it is solely based on German law and therefore non-binding for the ECB and would essentially prohibit Germany’s participation in the common monetary policy. (4) Finally, the most likely outcome is that the FCC will turn down the appeal but still raise doubts and scepticism about OMT. Such a decision could potentially curb the scope of the programme and strengthen its critics in the Governing Council, most notably Bundesbank president Weidmann.

The Handelsblatt recently analysed the Bundesbank’s criticisms of the ECB’s policy. The Bundesbank’s main points of criticism are that the ECB’s Governing Council is not subject to parliamentary oversight and therefore should not be allowed to reach decisions that will lead to Germany having to take over financial liabilities. Stabilisation policies should rather be enacted through the ESM, while the ECB should restrict itself to the conduct of monetary policy. OMT also overstretches the ECB’s mandate of safeguarding price stability by supporting fiscal policies of heavily indebted countries and thereby threatening its institutional independence. While the ECB argues that OMT will also align interest rates across the euro zone and thereby keep monetary policy effective, the Bundesbank dismisses this justification because diverging level of interest rates across the euro zone only reflect different levels of economic strengths in the respective countries. Overall the Handelsblatt is confident that in the end the FCC will conditionally approve of the ECB’s rescue policies.

The Welt further quotes the German law professor Christoph Schalast who suggests that it seems unlikely that the FCC will stop the OMT and the complaint is rather “an act of despair of Euro sceptics”. Another law professor, Joachim Wieland, said that “if the FCC would rule that OMT is beyond the ECB’s mandate, not only the common monetary policy, but also the EU would be finished.” While most German law experts believe that OMT is at least problematic, they also share the view that the FCC will shy away from bluntly accusing the ECB of violating EU and German law. Still, according to the FAZ Udo Di Fabio, a former constitutional judge and professor of constitutional law, argues in a statement for the Stiftung Familienunternehmen, an interest group of family-owned companies, that if the ECB is indeed indirectly financing governments’ budget deficits through OMT, the FCC ultimately has to obligate the German government and the parliament to leave the euro zone should recommendations to change policies of the main German political institutions (“Einwirkungsaufträge”) remain unsuccessful. Other measures according to Di Fabio contain changes in the basic law as well as rules for a structured sovereign default in order to strengthen national governments’ fiscal responsibilities.

Most German newspapers, for example FAZ and Handelsblatt, portray the hearing before the FCC as a showdown between the Bundesbank and the ECB, where two Germans, Jörg Asmussen of the ECB and Jens Weidmann of the Bundesbank will defend the opposing views of the institutions they are representing. Asmussen and Weidmann shared a trust- and respectful working relationship due to their prior jobs, when Asmussen was working for the finance ministry and Weidmann for chancellor Merkel as an economic advisor. Regarding the ECB’s rescue policies, however, both now share diametrically opposed views. Mario Draghi’s choice to send Asmussen to justify the ECB’s policy instead of Yves Mersch, who was previously considered to testify before the Court, also reflects Asmussen’s knowledge of the Court’s procedures and peculiarities. Some members of the governing coalition, however, would still like to see Draghi testify before the Court. According to the FAZ, Rainer Brüderle, vice chairman of the Liberal parliamentary group (FDP) in the Bundestag and front runner for the party in the upcoming national elections, wrote a letter to Draghi requesting that he himself instead of Asmussen should testify before the FCC; the importance of the matter subject would require his attendance.

Read more on Outright Monetary Transactions

The ECB’s OMT Programme and German Constitutional Concerns

OMT ruling: Karlsruhe says no, refers to ECJ and suggests ECB should always be preferred creditor

Overview of the Karlsruhe Hearing on OMT – Summary

In defense of OMT ahead of Karlsruhe

Blogs review: OMT – Has the ECB solved the Euro Crisis?

The SMP is dead. Long live the OMT

The OMT programme was justified but the fiscal union question remains

Did the German court do Europe a favour?


Republishing and referencing

Bruegel considers itself a public good and takes no institutional standpoint. Anyone is free to republish and/or quote this post without prior consent. Please provide a full reference, clearly stating Bruegel and the relevant author as the source, and include a prominent hyperlink to the original post.

View comments
Read about event More on this topic

Upcoming Event

Dec
6
19:00

Game Over – The Inside Story of the Greek Crisis -Drawing the broader lessons for Europe

Solvay Brussels School and Bruegel are co-organizing an event at which George Papakonstantinou and André Sapir will discuss the Greek crisis and its social and economical impact over the last 6 years.

Speakers: André Sapir, Guntram B. Wolff and George Papakonstantinou Topic: European Macroeconomics & Governance Location: Avenue Franklin Roosevelt 42 Brussels, 1050, Ixelles
Read about event More on this topic

Upcoming Event

Dec
7
12:30

Transition for all: equal opportunities in an unequal world

How inclusive is growth in transition countries? Post-communist countries are becoming more prosperous but many people are being left behind, risking setbacks in political and economic development.

Speakers: Heather Grabbe, Zsolt Darvas, Katarina Mathernova, Sergei Guriev and Jonathan Charles Topic: European Macroeconomics & Governance Location: Bruegel, Rue de la Charité 33, 1210 Brussels
Read article More on this topic More by this author

Blog Post

Pia Hüttl

Macroeconomics in the crossfire (again)

What’s at stake: After a first go at macroeconomics and its flaws a year ago, Paul Romer kicked off the debate again with a recent essay on how macroeconomics has gone backwards. The way that this debate, along with the debate of the role of economics in general, feeds into today's election woes, has also attracted attention in the blogosphere.

By: Pia Hüttl Topic: European Macroeconomics & Governance Date: December 5, 2016
Read article More on this topic More by this author

Blog Post

Silvia Merler

Financial implications of the Italian referendum

On Sunday, Italy will held a constitutional referendum whose implications for the political stability of the country are uncertain. Right after the referendum, Italy’s oldest and most troubled bank - Monte dei Paschi di Siena - is expected to complete a very important and sizable capital raise. Here we look at the situation and implications of this critical juncture.

By: Silvia Merler Topic: European Macroeconomics & Governance Date: December 2, 2016
Read about event More on this topic

Past Event

Past Event

Labour mobility after Brexit

What will Brexit mean for the free movement of workers between the UK and the EU?

Speakers: Lindsey Barras, Zsolt Darvas, Jonathan Portes and Klaus F. Zimmermann Topic: European Macroeconomics & Governance Location: Bruegel, Rue de la Charité 33, 1210 Brussels Date: December 2, 2016
Read article Download PDF More on this topic

Policy Contribution

pc-20-16_page_01

What impact does the ECB’s quantitative easing policy have on bank profitability?

This Policy Contribution shows that the effect of the ECB’s QE programme on bank profitability has not yet had a dramatically negative effect on bank operations.

By: Maria Demertzis and Guntram B. Wolff Topic: European Macroeconomics & Governance Date: November 30, 2016
Read article

Blog Post

Giuseppe Porcaro
hsbeziyq

Tweeting the Italian referendum: the hashtag war

We are monitoring an aggregate of twitter hashtags in the run up to the Italian Constitutional referendum of 4 December 2016.

By: Giuseppe Porcaro, Henrik Müller and Gerret von Nordheim Topic: European Macroeconomics & Governance Date: November 29, 2016
Read article More on this topic More by this author

Blog Post

Silvia Merler

The Italian referendum

What’s at stake: on 4 December, Italy will hold a referendum on a proposed constitutional reform approved by Parliament in April. The reform, which was designed in tandem with a new electoral law, aims to overcome Italy’s “perfect bicameralism” by changing the structure and role of the Italian Senate. It also changes the distribution of competences between the state and regions. After the shocks of Brexit and the US election, polls are now drifting towards a defeat of the government’s position in Italy.

By: Silvia Merler Topic: European Macroeconomics & Governance Date: November 28, 2016
Read about event More on this topic

Upcoming Event

Jan
9
09:30

Can migration work for all in Europe?

On 9 January Bruegel together with the IMF is organizing a conference on migration and whether it can work for all in Europe.

Speakers: Jorg Decressin, Gianpiero Dalla Zuanna, David Lipton, Alessandra Venturini and Guntram B. Wolff Topic: European Macroeconomics & Governance Location: Bruegel, Rue de la Charité 33, 1210 Brussels
Read article More on this topic More by this author

Blog Post

Zsolt Darvas

Income inequality has been falling in the EU

The properly measured EU-wide Gini coefficient of disposable income inequality shows that inequality in the EU as whole declined in 1994-2008, after which it remained broadly stable. However, within the EU, there are large differences in income inequality which require policy action.

By: Zsolt Darvas Topic: European Macroeconomics & Governance Date: November 23, 2016
Read article More on this topic

Blog Post

Pia Hüttl
Silvia Merler

An update: Sovereign bond holdings in the euro area – the impact of QE

Since the ECB’s announcement of its QE programme in January 2015, national central banks have been buying government and national agency bonds. In this post we look at the effect of QE on sectoral holdings of government bonds, based on our recently updated dataset.

By: Pia Hüttl and Silvia Merler Topic: European Macroeconomics & Governance Date: November 22, 2016
Read about event More on this topic

Past Event

Past Event

Vision Europe Summit 2016

The 2016 Vision Europe Summit is titled "Redesigning European Migration and Refugee Policy" and will be held in Lisbon on 21-22 November 2016.

Topic: European Macroeconomics & Governance Location: Lisbon Date: November 21, 2016
Load more posts