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Europe and the world are eagerly awaitingthe decision of Germany’sConstitutional Courton September 12 regarding the European Stability Mechanism (ESM), the proposedpermanent successor to the eurozone’s current emergency lender, the European Financial Stability Mechanism. The Courtmust rule on German plaintiffs’ claim thatlegislation to establish the ESM would violate Germany’s Grundgesetz (BasicLaw). If the Court rules in the plaintiffs’favor, it will ask Germany’spresident not to sign the ESM treaty, which has already been ratified by Germany’s Bundestag (parliament).
There are serious concerns on allsides about the pending decision. Investorsare worried that the Court could oppose the ESM such that they would have tobear the losses from their bad investments. Taxpayers and pensioners inEuropean countries that still have solid economies are worried that the Courtcould pave the way for socialization ofeurozone debt, saddling them with the burden of these same investors’ losses.
The plaintiffsrepresent the entire political spectrum, including the Left Party, theChristian Social Union MP Peter Gauweiler, and the justice minister in formerChancellor Gerhard Schröder’s Social Democratic government, HertaDäubler-Gmelin, who has collected tens of thousands of signatures supportingher case. There is also a group of retired professors of economics and law, andanother of “ordinary” citizens, whose individual complaints have been selectedas examples by the Court.
The plaintiffs have raised several objections to theESM. First, they claim that it breaches theMaastricht Treaty’s “no bail-out” clause (Article 125). Germany agreed to relinquish the DeutscheMark on the condition that the new currencyarea would not lead to direct or indirect socialization of its members’ debt,thus precluding any financial assistancefrom EU funds for states facing bankruptcy. Indeed, the new currency wasconceived as a unit of account for economic exchange that would not have anywealth implications at all.
The plaintiffs arguethat, in the case of Greece,breaching Article 125 required proof that its insolvency would pose a greaterdanger than anticipated when the Maastricht Treaty was drafted.However, no such proof was provided.
Second, Germany’s law on the introduction of the ESM obliges Germany’s representative on the ESMCouncil to vote only after having asked the Bundestagfor a decision. According to the plaintiffs, this is not permissible under international law. If Germanyhad wished to constrain its governor’s authority in this way, it should haveinformed the other signatory states prior todoing so. On the other hand, Germany’srepresentative on the Governing Council is sworn tosecrecy, which, the plaintiffs argue, precludesany accountability to the Bundestag.
Moreover, theplaintiffs claim that, while the ESM treaty is restrictive in grantingresources to individual states, requiring a qualified majority vote, it doesnot specify the conditions under which losses are acceptable. Losses can resultfrom excessive wages paid by the ESM Governing Council members to themselves, adearth of energy in efforts to collect debtsfrom countries that have received credit, or other forms of mismanagement. And,because Governing Council and Executive Board members enjoy immunity from criminal prosecution, misbehavior cannot be punished.
If losses arise, theymust be covered by the initial cash contribution of
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