Wolfgang Streeck - Why the Karlsruhe court is right

"Those who want the EU to be sovereign are free to ask for a formal revision of the treaties, followed by a referendum where this is constitutionally necessary to make changes to the treaties effective. Federalism, why not - but please in the sunlight and not as a side effect of the policies of the ECB, approved by the activism of a European court, "writes the great German intellectual Wolfgang Streeck on the judgment of the Karlsruhe Court. For Streeck the sentence of the German Constitutional Court will have far-reaching effects and for German politics the hour of truth is coming. An excellent Wolfgang Streeck from Makroskop

The ruling on the PSPP (Public Sector Purchasing Program) of the Federal Constitutional Court showed another rift in the structure of the European Union, namely that between legal systems with a different conception of the Constitution. There are strong parallels with the case of the United Kingdom, where the EU model, according to which a constitution is modified step by step by a court of last resort, has clashed sharply with the British tradition of strong parliamentary governance , which contributed to Brexit.

In the conflict between the German Constitutional Court and the European Court of Justice (ECJ), we are witnessing a battle between two powerful courts of last resort, a conflict which essentially concerns only one fundamental question, namely: the EU is an organization international or a federal state?

A prominent position that is part of the post-war political heritage

The strong position of the German Federal Constitutional Court is an essential part of the post-war political heritage. It is comparable to the provisions of the Basic Law according to which German troops, even if they are under international command, cannot be deployed without a strictly defined parliamentary mandate. Both provisions severely limit the discretion of the federal executive and both are not easily reconciled with another constitutional obligation of the German government, namely: to pursue international cooperation as a national goal.

In general, the far-reaching powers attributed to the Federal Constitutional Court may represent a somewhat uncomfortable restriction on the ability of German governments to act, both in foreign and domestic policy. And in fact it is just like that, even if at times considering the Constitutional Court as a potential spoilsport can improve our country's international negotiating position. On the other hand, the Court usually does its best to meet the incumbent governments.

And this is the case of the PSPP, in which the Bundesbank was not prevented from participating in the ECB's bond purchase program. What the court insists, however, is its decision-making power, regarding the fact that the acts of the German state organs, in particular the Bundesbank, may violate the basic democratic and political rights of German citizens, as they are not covered neither by German Basic Law nor by international law through treaties legally ratified by the German state.

Even under pressure from a crisis, constitutions cannot be ignored

The effects are far-reaching. While adhering to its constitutional mandate, the German Court, in fact, insists that the EU, the ECB and the European Court of Justice cannot in any way extend their jurisdiction to the rights of German citizens guaranteed by the German Constitution. Although this may seem trivial, it implies that the European Union is not (yet) a federal state, but still depends on whether its Member States have given it certain powers. (One of the judges a few days after the verdict said in an interview with a newspaper: "until we live in a European state, the accession of a country is subject to that country's constitutional law").

The ruling also implies that constitutions - including the de facto EU constitution - cannot be changed incidentally. Nor can they be ignored under the pressure of a crisis, according to Carl Schmitt's notorious saying: "the emergency is the hour of the executive", not to mention the equally notorious German saying: "necessity knows no commandments".

Anyone who wants the EU to be sovereign, the court says, is free to request a formal revision of the treaties, followed by a referendum where this is constitutionally necessary to implement the changes to the treaties. Federalism, why not - but please in the sunlight and not as a side effect of the crisis management by the ECB, sanctioned by an activist European court. (Of course, a federal revision of the treaties, in fact any revision, can be ruled out both today and in the near future - also due to the heterogeneity of the interests of the current 27 Member States, none of which, in particular the Mediterranean countries , they want to renounce their sovereignty).

Questions on the true nature and true purpose of the EU

It is interesting that commentators, both left and right, do not understand how great the embarrassment for the German government has been after the decision on the PSPP of the Federal Constitutional Court, just when Germany is preparing to take over the presidency of the EU in the second half of the year. So to cool the excitement of international rhetoric over Germany's alleged thrift, the German state, in order to confirm its European hegemony, will end up paying the EU coffers far more than its somewhat worried voters would have ever granted. Even worse, the ruling raised the question of all issues, the question that European governments have learned to avoid, namely: what is the true nature and purpose of the EU?

For the German political class, the temptation to use European protests against the Federal Constitutional Court to downgrade its rank within the German constitution must be enormous. This would greatly expand the political reach of the executive and would certainly be consistent with a general trend present in capitalist democracies, with notable parallels similar to developments in Poland and Hungary, for example. A reduction in the powers of the Federal Constitutional Court, however, would not be easy as its reputation in German public opinion remains high.

Constitutional reform as a gift for the European Council?

A constitutional change that turns the Federal Constitutional Court into a second instance court subordinated to the Court of Justice, however, could have possibilities. Especially if you manage to give the impression that this could somehow help against Coronavirus and the subsequent economic catastrophe. The two-thirds majority required in parliament could also be found, with the SPD and the Greens replacing the CDU / CSU MPs who would refuse to make this change. Wouldn't that be a nice gift from Merkel to the European Council when Germany takes over the Presidency of the Council of the EU on 1 July 2010?

A downgrade by the German Constitutional Court should also be welcome for those who - like the German philosopher Jürgen Habermas - are calling for the establishment of a European army as a vehicle for creating a European state. The need to receive a mandate from the Bundestag often turned out to be a problem, especially when Germany was asked to provide troops for "missions" in places like Iraq, Libya, Syria, Mali or Afghanistan. Without the Constitutional Court, at least as regards foreign policy and international cooperation, it would have been much easier for the German government to ignore the concerns of parliamentarians.

Ursula von der Leyen, currently in the presidency of the European Commission, in her previous position as German Defense Minister on more than one occasion will have found herself unable to do a favor to the Americans or the French because of the foreseeable objections of the Bundestag. As President of the European Commission, without the German Constitutional Court, he would finally be able to build European military "cooperation", for example to control the former French colonies in West Africa.

Violation of "European sovereignty"?

In any case, immediately after the announcement of the Court's decision, Green Members of the European Parliament asked the Commission to open a formal infringement procedure against Germany - presumably in the name of German constitutional patriotism - although the German government has not did nothing to implement the sentence, and it is not even clear if he will ever do so. Von der Leyen, a longtime Merkel loyalist, followed suit by expressing concern that other Eastern European countries such as Poland might feel encouraged otherwise not to comply with ECJ decisions. On that occasion, he described the PSPP ruling as a violation of "European sovereignty".

Infringement procedures take time and, in any case, some Member States will wonder what this would mean for their sovereignty if the EU were to manage to claim sovereignty for itself. Perhaps they will wait until the last minute, hoping that the Germans will take charge of the consequences of the conflict. In all likelihood, the process will end or not even begin if, in return, Germany agreed to pay more money into the next European budget, perhaps after slaughtering its Constitutional Court as a sacrificial lamb on the altar of Europeanism.

Whatever happens, you can bet on two things. First, the German government will find a way to give the ECB the possibility of continuing to "do everything possible" to keep the euro alive. (Whether this will eventually succeed is another question.) The euro is the German gold mine par excellence, while it is not at all clear why Italy, Spain and France have such a strong desire to keep it, for Germany in this long phase of capitalist stagnation it is a lifeline.

Secondly, even if the ECB, the EU budget, the European Investment Bank and all the others, thanks to the injections of European money and the skilful staging of an alleged German capitulation, still continued for several years to find the means necessary to maintain and forage the political classes of the southern periphery of the eurozone which is now in decline, this would not in any way stop the economic devastation of the Mediterranean countries. Because this is structural in nature, and is rooted in the renunciation of monetary sovereignty of the Mediterranean countries and is so profound that it cannot be resolved through those transfers that German governments could afford both economically and politically.

The result will be growing inequality between monetary union countries and within countries, and will be accompanied by steadily growing international hostility. The hour of truth is approaching for the empty promises made by the Germans in the past, made with the irresponsible hope that they should never be kept. Disappointment will deeply poison European politics.