Europhiles, skeptics put faith in top German court

Reuters News
Posted: Jul 05, 2012 9:38 AM
Europhiles, skeptics put faith in top German court

By Stephen Brown

BERLIN (Reuters) - In some places Germany's Federal Constitutional Court is seen as a stone in the shoe of European integration, but at home polls show it is trusted more than any other institution, trumping government, parties and the media.

Though only 2.4 percent of about 6,000 complaints brought before the court each year are upheld, europhiles and eurosceptics alike are looking to the court to draw the lines to defend German sovereignty and self-interest as the euro zone debt crisis demands more concessions from the region's paymaster and biggest economy.

"The judges will decide independently," Frank Schaeffler, a backbencher in the Bundestag (lower house of parliament), told Reuters. He is among a handful of dissidents in Angela Merkel's centre-right coalition who back the injunction requests that are delaying the implementation of Europe's new anti-crisis tools.

The power of the 16 judges on the court to throw out laws they deem unconstitutional - whether in defense of the rights of transsexuals, battery chickens, or the legislative assembly - has given them a central role in the euro zone drama.

Financial markets hang on their Delphic rulings on whether measures to arrest the region's debt crisis are lawful in Germany.

The judges are nominated from lower courts, academia and law practice, some by the Bundestag and some by the Bundesrat upper house, and need two-thirds approval to serve a single 12-year term. Of the current members, seven each were nominated by Merkel's conservatives and the main opposition Social Democrats and one each by the centre-right Free Democrats and the Greens.

The judges can have a political background - one of the newest appointments, 56-year-old Peter Mueller, was previously conservative premier of the state of Saarland - but they cannot be members of any federal or regional parliament or government, and must be "independent and subject only to the law", meaning they cannot act according to party or political sympathies.

The very location of the court in Karlsruhe is a symbol of their independence, aloof from the centers of power in Berlin, Bonn or Frankfurt.

But these are not distant, faceless technocrats.

Court president Andreas Vosskuhle, like Mueller, sits in the Second Chamber of the court, which is handling a complaint about the euro zone's fiscal pact for budget discipline and its permanent bailout fund, the European Stability Mechanism (ESM). He has become such a respected figure that he was considered a contender for German head of state when Christian Wulff stepped down in disgrace in February.

And Roman Herzog, the first elected president of the reunified Germany from 1994-99, was previously head of the Constitutional Court.


Though there is plenty of pressure on the court - be it former chancellor Helmut Schmidt telling it to "wear its heart on its sleeve" and put Europe first, or Schaeffler warning of the "risk of doing irretrievable damage" to German budget law - the red-robed judges won't be pushed or hurried.

With disdain for political expediency, they scheduled their deliberations on the fiscal pact for July 10 - a day after the already-delayed implementation date for the ESM across the 17-state currency zone.

"I believe the Constitutional Court is the only place in Germany which takes enough time to weigh such important laws," said the eurosceptic conservative MP Klaus-Peter Willsch.

Despite widespread expectations that it will give the green light to the ESM and fiscal pact, Willsch is convinced the court will be "meticulous" and ignore warnings of negative fallout on markets if it should unexpectedly uphold the injunctions.

This typifies the respect in which most Germans hold the court, established in 1951 to defend the new constitution - with an "eternity clause" protecting fundamental rights - and make any new attempt at Nazi-style tyranny impossible.

A disgruntled Konrad Adenauer, Germany's first post-war chancellor, said the court itself was now "the dictator of Germany" after its early moves to limit the powers of the executive.

Outsiders, too, can find it infuriating.

"It is not the business of Karlsruhe to stop this country being governed," said one foreign diplomat, voicing frustration among Germany's partners when the court slapped Merkel's wrists for rushing the ESM through parliament and then said it would take its own sweet time to sign off on the ESM's ratification.

To come into effect, the ESM needs approval by states representing 90 percent of its capital base. The German parliament gave its overwhelming approval last week but full ratification requires the court's nod and the signature of President Joachim Gauck.


With the bailouts taking the transfer of sovereignty to what Eurasia political risk analyst Carsten Nickel called "the outer margins" of the constitution, the court called oral proceedings, rather than just written submissions. That meant further delay.

But Merkel's spokesman Georg Streiter dismissed talk of this causing tension with Berlin, saying: "The idea that you can in some way influence the Constitutional Court is completely absurd."

Vosskuhle, at 48 the youngest-ever court president, said the environment in which the court pondered its rulings was "sometimes a bit monastic" but added in an interview with weekly Die Zeit in May: "We cannot and must not be guided by who will like our decisions and who won't."

For all the anxiety, the court has not actually blocked any of the bailouts since the euro crisis began in 2010.

What it has consistently done is to demand full consultation with the Bundestag and set limits on the powers of a panel of MPs that the budget committee set up to give more agile decisions on the use of temporary bailout funds.

Its 2009 ruling on the Lisbon Treaty, which updated the EU's constitutional framework, also defended parliament's role in the decision-making, which Vosskuhle, though supportive of a federal Europe, called the "red line" running through all the court's decisions on European integration.

Even eurosceptics such as Wolfgang Bosbach from Merkel's Christian Democrats (CDU) expect the panel of judges to give a pragmatic verdict in the days after the July 10 hearing.

"The judges know what political impact a clear 'no' to the fiscal pact and ESM would have," Bosbach said. "So I expect them to issue a partial criticism, but not reject the fiscal pact and ESM lock, stock and barrel."

It is debatable how strong Germans really want Europe to be, however. In a new poll by Forsa, the vast majority of people opposed handing budget powers to Brussels or creating a United States of Europe, and wanted the chance to express this in a referendum - which had hitherto been taboo in Germany since Adolf Hitler used such plebiscites to amass power as Fuehrer.

Merkel allies including Finance Minister Wolfgang Schaeuble believe a referendum is likely as the move to greater political and fiscal union requires ceding more sovereignty to Brussels.

"People want a strong Europe, but they want a Europe whose political decisions and developments they can influence and whose workings they understand," said Vosskuhle.

(Reporting by Stephen Brown; Editing by Will Waterman)