Yesterday in Karlsruhe, in front of the German Constitutional Court, the debate has begun on the appeal of several citizens, politicians and exponents of the academic world against the financial stabilization mechanism (ESM) and the Fiscal Compact. The issue is complex. After approval with a two-thirds majority by Bundestag and Bundesrat last June 29, the laws authorizing the ratification should have been immediately signed by the President of the Republic, Joachim Gauck. However, given the immediate appeal of so many citizens, the head of state preferred not to sign immediately, in order to allow the Constitutional Court to express itself carefully on the complaints. In an interview with the television station ZDF, the President actually specified that he was happy with the proposition of the appeals, an important factor of democracy. Once an international treaty has been ratified, it would no longer be possible to remove its legal effects, even if the treaty were to be judged unconstitutional at a later stage.
The appellants have so far played a trick by proposing first a precautionary request, Namely asking the Constitutional Court to issue a precautionary measure (einstweilige Anordnung) which prevents the entry into force of the treaties, until a final judgment of the Court. The precautionary measure can be issued on the basis of the existence of certain conditions, namely «if this is urgently required to avoid serious harm, to prevent imminent violence or for another important reason in view of the common good». In the event that the Court judges the existence of these conditions, it will therefore temporarily block the ratification process. The precautionary measure would therefore not be a definitive sentence on the constitutionality of the stabilization fund and of the Fiscal Compact. This sentence will come at a later time, probably in the autumn. However, it is clear that, in the absence of a precautionary measure, even a declaration of unconstitutionality in the autumn would be useless. The game will therefore be played in the next three weeks, the time that the Court seems to have given itself to decide whether or not to issue a precautionary measure.
Yesterday in Karlsruhe the Finance Minister appeared visibly nervous. When it was time to express the reasons of the executive, Schäuble dared to ask the Court to "make haste". Without Germany's ratification, the ESM cannot enter into force, with the risk of increasing panic on the markets. The yellow-black coalition has therefore been breathing heavy air for days. The group leader of the FDP liberals in the European Parliament, Alexander Graf Lambsdorff, went so far as to accuse the Constitutional Court of not having the necessary expertise to understand the crisis. The president of the Bundesbank, Jens Weidmann, showed himself more serene (and at times sly) who, again from Karlsruhe, explained that the resources allocated to the EFSF, the provisional stabilization fund, would in any case be sufficient to deal with the Spanish emergency and Cypriot. On the other side of the fence, the appellants, who dispute the lack of sufficient powers of the Bundestag to control the ESM, they have shown themselves to be very combative. Alongside the usual suspects, the constitutionalist Karl-Albrecht Schachtschneider and the economist Joachim Starbatty, authors of the appeals already at the time of the introduction of the euro, there were the former Social Democratic Justice Minister Herta Däubler-Gmelin and Professor Christian Degenhart , which in recent months have collected around 12.000 signatures from citizens opposed to the ESM. Among the recurring politicians, there was Gregor Gysi, representing the entire parliamentary group of the radical left al Bundestag and Peter Gauweiler, Eurosceptic in the ranks of the Bavarian CSU.
