Zhe financial policy of the European Union has been running at the Federal Constitutional Court for years as it were a crime series. The preliminary high point in 2020 was the spectacular judgment on the purchase of government bonds by the European Central Bank (ECB). For years, Karlsruhe had warned that EU financial policy was borderline. Then came the thunderbolt: the ECB had acted in violation of its competence; the judgment of the European Court of Justice (ECJ), which took a different view, was “absolutely no longer understandable”. The ECJ had decided “ultra vires”, wrote the Second Senate at the time.
Now, in the sequel, storm clouds gather again. Again, the fundamental question is whether the EU has crossed the line into a transfer and fiscal union and is thus – ultra vires – assuming powers. This time, the dispute ignited over the 750 billion euro economic stimulus package, which is primarily intended to help the financially weaker EU countries to cope with the consequences of the corona pandemic.
Two out of seven constitutional complaints
The legal bone of contention in the Karlsruhe proceedings is the ratification law, with which the German legislator approved the program with the sonorous name “Next Generation EU”. The Commission will be empowered to raise funds on the capital markets on behalf of the EU up to an amount of €750 billion in 2018 prices. However, Karlsruhe Federal President Frank-Walter Steinmeier initially prohibited the drafting of the ratification law because of an urgent application against the Corona aid plans. An unusual intervention. A month later, the court rejected the urgent application, and Steinmeier was allowed to sign.
This Tuesday and Wednesday, the Second Senate will now mainly negotiate two out of a total of seven constitutional complaints against German participation in the EU Corona Fund. The complainants are old acquaintances: the Düsseldorf-based plant manufacturer and former industry president Heinrich Weiss was one of those who brought the ECB’s bond-buying program before the constitutional court. The economics professor and AfD founder Bernd Lucke, who left the party in 2015, was also there. Weiss’ legal representative, the constitutional lawyer Christoph Degenhart, had already argued that the right to democracy would be at stake if the EU did not stick to its responsibilities. That is what the argument about the “biggest economic stimulus package of all time” is about, as the Commission proudly calls the “Next Generation EU” program. Over a term of more than 30 years, the EU will be able to borrow more than 70 percent of its own funds. In order to ensure liability, the maximum amount of own resources that the EU can call on from member states had to be increased.