Federal Constitutional Court - Press office -

Press release no. 68/2011 of 28 October 2011

Order of 27 October 2011 – 2 BvE 8/11 –

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


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. 


This press release is also available in the original german version.