Bundesverfassungsgericht

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Temporary injunction regarding the euro rescue package: For the time being, no transfer of the Bundestag’s rights of participation to a so-called nine-member special panel

Press Release No. 68/2011 of 28 October 2011

Order of 27 October 2011
2 BvE 8/11

As a reaction to the sovereign debt crisis in the area of the European Monetary Union, its Member States created the euro rescue package. In connection with the rescue package, a special purpose vehicle under private law, the European Financial Stability Facility (EFSF), was founded. The special purpose vehicle is provided with guarantees by the Member States enabling it to borrow the funds on the capital markets which it makes available to debt-heavy Member States. In the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism (Gesetz zur Übernahme von Gewährleistungen im Rahmen eines europäischen Stabilisierungsmechanismus, Euro Stabilisation Mechanism Act (Stabilisierungsmechanismusgesetz - StabMechG) of 22 May 2010, the federal legislature defined the preconditions for rendering financial assistance at national level. Press releases no. 37/2011 of 9 June 2011 and no. 55/2011 of 7 September 2011, which are available on the Federal Constitutional Court's website, provide information about the details.

In May/July 2011, the Member States agreed to make the EFSF's agreed maximum loan capacity of 440 billion euros fully available and to provide the EFSF with further, more flexible instruments to overcome the sovereign debt crisis and the increased risk of contagion among the euro Member States. In Germany, the European agreements were transposed by the Act Amending the Euro Stabilisation Mechanism Act (Gesetz zur Änderung des Stabilisierungsmechanismusgesetzes), which entered into force on 14 October 2011. The Act provides guarantee facilities on the part of the Federal Republic of Germany that have now been raised to approximately 211 billion euros, it defines the extended instruments of the EFSF and determines the prerequisites of their employment. Furthermore, the Act redefines the Bundestag's rights of participation. According to the Act, decisions of the German representative in the EFSF in principle require the consent of the Bundestag. In particularly urgent and confidential cases, however, the Bundestag's right of participation shall, according to § 3.3 StabMechG, be exercised by a panel which will be newly created; its members shall be elected from among the members of the Budgetary Committee (41 at present). According to the new legislation, emergency measures aimed at preventing risks of contagion shall as a general rule be deemed particularly urgent or confidential. In all other cases, the Federal Government can assert that an urgency or confidentiality situation exists. The body has the right to object to this assertion in order to again achieve a competence of the entire Bundestag to decide, which can only be exercised by a majority. Apart from that, according to § 5.7 StabMechG the rights of the Bundestag to be informed can be transferred to the panel.

On 26 October 2011, the Bundestag elected the nine members of the panel (so-called nine-member special panel).

The applicants are Members of the German Bundestag. By way of Organstreit proceedings [a dispute between supreme federal bodies], connected with an application for a temporary injunction, they oppose the new regulation of the Bundestag's participation that has been introduced by the amendment of the law. They argue that delegating Parliament' budgetary responsibility to the nine-member special panel according to Article 38.1 sentence 2 of the Basic Law (Grundgesetz - GG) violates their status as Members of Parliament.

The Second Senate of the Federal Constitutional Court has decided by means of a temporary injunction that until the ruling in the Organstreit proceedings is handed down, the Bundestag's rights of participation may not be exercised by the newly constituted panel.

The result of the weighing of consequences which is required for the issuing of a temporary injunction is that the applicants would suffer serious detriment if the temporary injunction were not issued and the Organstreit proceedings were to prove well-founded later on. In the meantime, their rights arising from their status as Members of Parliament under Article 38.1 sentence 2 GG might have been irreversibly violated. For until the ruling in the main action is handed down, the special panel might take decisions that affect the applicants' rights arising from their status as Members of Parliament with regard to the Bundestag's overall budgetary responsibility, for instance by approving an emergency measure of the EFSF on application of a euro area Member State. Such a possible violation of the law could not be reversed by a ruling of the Federal Constitutional Court in the main action because after the approval, the Federal Republic of Germany would have entered into obligations that are binding under international law.

In comparison, the disadvantages carry less weight which would ensue if the Federal Constitutional Court issued the temporary injunction sought but the application in the Organstreit proceedings were unsuccessful in the main action. If the special panel were not to exercise its rights of participation and information until the ruling in the main action, this would not endanger the Federal Government's required ability to act in this period. On the contrary, the Federal Government can at any time apply to the German Bundestag for necessary acts of approval which will then be decided by the plenary.