Federal Constitutional Court - Press office -
Press release no. 42/2012 of 19 June 2012
Judgment of 19 June 2012
2 BvE 4/11
Successful applications in Organstreit proceedings regarding the
“ESM/Euro Plus Pact”
In its judgment pronounced today, the Federal Constitutional Court
considered well-founded the applications made by the Alliance 90/The
Greens parliamentary group with which the applicant asserts that the
German Bundestag’s rights to be informed by the Federal Government have
been infringed in connection with the European Stability Mechanism (ESM)
and the Euro Plus Pact.
Legal background:
According to Article 23.2 sentence 2 of the Basic Law (Grundgesetz
– GG), the Federal Government shall keep the German Bundestag
informed, comprehensively and at the earliest possible time, “in
matters concerning the European Union”.
The first application is aimed at what is known as the European
Stability Mechanism (ESM). The European Stability Mechanism is an
intergovernmental instrument of the euro area Member States to
combat the sovereign debt crisis in the area of the European
Monetary Union. The applicant applies for a declaration that the
Federal Government infringed the German Bundestag’s rights to be
informed under Article 23.2 GG by omitting to inform immediately
before and after the European Council meeting of 4 February 2011
comprehensively, at the earliest possible time and continuously,
about the configuration of the ESM, and that it in particular
omitted to send the Draft Treaty establishing the ESM to the German
Bundestag on 6 April 2011 at the latest.
The second application concerns what is known as the Euro Plus
Pact, which was presented to the public for the first time at the
European Council meeting of 4 February 2011. This agreement which
was initially discussed in Germany under the name “Pakt für
Wettbewerbsfähigkeit” (Competitiveness Pact), is intended in
particular to structurally reduce the risk of currency crises in
the euro area. To achieve this, the Euro Plus Pact intends, among
other things, to strengthen the economic pillar of the monetary
union and to achieve “a new quality of economic coordination”. In
this context, the applicant applies for a declaration that the
Federal Government infringed the German Bundestag’s rights under
Article 23.2 GG by omitting to inform the Bundestag before the
European Council meeting on 4 February 2011 about the Federal
Chancellor’s initiative for an enhanced economic coordination of
the euro area Member States and by omitting until 11 March 2011 to
inform it comprehensively and at the earliest possible time about
the Euro Plus Pact after the meeting.
Against this backdrop, the Organstreit proceedings (proceedings
relating to a dispute between supreme federal bodies) have to
clarify whether the rights of participation and the rights to be
informed which are due to the Bundestag according to Article 23.2
GG can also apply to intergovernmental instruments of the nature
described which are dealt with by the Federal Government in the
context of European integration and which are related to the
European Union.
The Second Senate of the Federal Constitutional Court ruled that the
Federal Government infringed the German Bundestag’s rights to be
informed under Article 23.2 sentence 2 GG with regard to the European
Stability Mechanism and with regard to the agreement on the Euro Plus
Pact.
In essence, the decision is based on the following considerations:
I. Standard of review
1. Article 23 GG confers on the German Bundestag far-reaching rights of
participation and rights to be informed in matters concerning the
European Union. The stronger involvement of Parliament in the process of
European integration serves to compensate the competence shifts in
favour of the Member States’ governments in the national structure of
powers that result from Europeanisation. Matters concerning the European
Union include Treaty amendments and corresponding changes at primary-law
level (Article 23.1 GG) as well as legislative acts of the European
Union (Article 23.3 GG). International treaties that complement European
Union law or otherwise show particular proximity to European Union law
are also matters concerning the European Union. There is no single
characteristic that is at the same time final and clearly delimited
according to which it can be ascertained whether such proximity exists.
What is important instead is an overall consideration of the
circumstances, including planned contents, objectives and effects of
legislation, which, depending on their weight, can prove decisive
individually or in their combination.
2. The Federal Government’s duty, laid down in Article 23.2 sentence 2
GG, to keep the German Bundestag informed comprehensively and at the
earliest possible time intends to make it possible for the German
Bundestag to exercise its rights, anchored in Article 23.2 sentence 1
GG, to participate in matters concerning the European Union. The
information must make it possible for the Bundestag to influence the
Federal Government’s opinion-forming early and effectively; information
must be provided in such a way that Parliament’s role is not reduced to
merely exercising indirect influence. Apart from this, the
interpretation and application of Article 23.2 GG must take into account
that the provision also serves the publicity of parliamentary work, a
requirement which is derived from the democratic principle laid down in
Article 20.2 GG.
a) In accordance with its function, the requirement of comprehensive
information is to be construed in such a way that the more complex a
matter is, the deeper it intervenes in the legislative’s area of
competences and the closer it gets to formal decision-making or to a
formal agreement, the more intensive the required information will be.
From this, requirements result with regard to the quality, quantity and
timeliness of the information. Thus, the duty to comprehensively inform
encompasses not only initiatives and positions taken by the Federal
Government itself and the subject-matter, the course and the result of
the meetings and deliberations of organs and bodies of the European
Union in which the Federal Government is represented. The duty to inform
also entails an obligation to make available official materials and
documents of the organs, bodies and authorities of the European Union
and of other Member States.
b) To inform in time is as important as the quantity of the information.
The indication “at the earliest possible time” in Article 23.2 sentence
2 GG means that the Bundestag must receive the Federal Government’s
information at the latest at a point in time that enables it to deal
with the matter in a substantiated manner and to prepare a statement
before the Federal Government makes declarations which have an effect on
third parties, in particular binding declarations concerning legislative
acts of the European Union and intergovernmental agreements. c) With a
view to the requirements placed on its clarity, continuity and
reproducibility, the information must, in principle, be provided in a
written form. Exception are only admissible within narrow limits; they
may, however, be required if the Federal Government can ensure
comprehensive information at the earliest possible time only if the
information is provided orally.
d) Boundaries of the duty to inform result from the principle of the
separation of powers. Within the Basic Law’s system of functions, a core
area of the government’s own executive responsibility exists that
includes an area of initiative, deliberation and action which in
principle has to be respected. As long as the Federal Government’s
internal formation of opinion has not come to an end, Parliament has no
right to be informed. If, however, the Federal Government’s
opinion-forming has evolved in such a specific direction that the
Federal Government can communicate interim or partial results to the
public or would like to set out on a process of concertation with third
parties with a position of its own, a project no longer falls within the
core area of the Federal Government’s own executive responsibility that
is shielded from the Bundestag.
II. Subsumtion
Measured against these standards, the applications are well-founded.
1. With regard to the establishment of the European Stability Mechanism,
the Federal Government has infringed the Bundestag’s rights to be
informed under Article 23.2 sentence 2 GG.
a) The establishment and configuration of the European Stability
Mechanism are a matter concerning the European Union within the meaning
of Article 23.2 sentence 1 GG because in an overall perspective, the
characteristics which define it show substantial connections with the
integration programme of the European Treaties. For instance, the
establishment of the European Stability Mechanism is to be safeguarded
by amending the Treaty on the Functioning of the European Union.
Furthermore, the treaty to be concluded for its establishment assigns to
the institutions of the European Union, in particular to the European
Commission and the Court of Justice of the European Union, new
responsibilities concerning the identification, realisation and
monitoring of the financing program for Member States in need of
assistance. Moreover, the European Stability Mechanism is to serve to
complement and safeguard the economic and monetary policy, which has
been assigned to the European Union as an exclusive responsibility. The
fact that the European Stability Mechanism is to be established by way
of a separate international treaty outside the structure of Community
law existing so far does not call into question its assignment to the
integration programme laid down in the Treaties establishing the
European Union and on the Functioning of the European Union. Due to its
being intertwined with supranational elements, the European Stability
Mechanism is of a hybrid nature which makes it a matter concerning the
European Union.
b) The Federal Government infringed the rights of the German Bundestag
under Article 23.2 sentence 2 GG by omitting to submit to the German
Bundestag a text of the European Commission on the establishment of the
European Stability Mechanism, which was available to the Federal
Government on 21 February 2011 at the latest, and the Draft Treaty
Establishing the European Stability Mechanism (ESM) of 6 April 2011.
Oral and written information, in particular sending the Draft Treaty
Establishing the European Stability Mechanism, which had already been
discussed in the extended Eurogroup on 17 or 18 May 2011 came too late
and do therefore not compensate the infringement of Article 23.2
sentence 2 GG. As results from the cumulative requirement of early and
comprehensive information, the duty to inform cannot be exercised “in an
overall package” with regard to processes of the nature existing here.
The Federal Government is obliged to supply the Bundestag not merely
with the text of a treaty when deliberations have already been
concluded, or after the treaty has been adopted, but must at the
earliest possible time submit interim results and interim versions of
the text that are available to the Federal Government.
2. The Federal Government also infringed the Bundestag’s rights under
Article 23.2 sentence 2 GG by not informing it comprehensively and at
the earliest possible time on the Euro Plus Pact.
a) Due to its specific orientation towards the integration programme of
the European Union, the agreement on the Euro Plus Pact is a matter
concerning the European Union within the meaning of Article 23.2
sentence 1 GG. The Euro Plus Pact is directed towards the European Union
Member States; in view to its objectives of achieving a qualitative
improvement of the economic policy and of the public budget situation
and of strengthening financial stability, it is, with regard to its
contents, oriented towards a policy area of the European Union which is
laid down in the Treaties. European institutions participate in the
realisation of the objectives of the Pact. The fact that the Euro Plus
Pact operates for the most part with self-commitments of the
participating Member States does not call into question its
classification as a matter concerning the European Union.
The Euro Plus Pact affects important functions of the German Bundestag.
In particular the self-commitments in areas which fall within the
legislative competence of the Member States, such as for instance tax
law and social law, and in which the legislature will in future be
subjected to monitoring by institutions of the European Union, concern
parliamentary responsibility and are liable to restrict the
legislature’s freedom of drafting. It was therefore required to inform
the legislature early and comprehensively.
b) The Federal Government did not comply with this obligation. Firstly,
it did not inform the German Bundestag in advance about the initiative
for the adoption of “Pakt für Wettbewerbsfähigkeit” – later referred to
as Euro Plus Pact – which was jointly presented by the Federal
Chancellor and the President of the French Republic at the meeting of
the European Council on 4 February 2011. The respondent would have had
to inform the German Bundestag about this plan on 2 February 2011 at
the latest. At that date, it was certain that a discussion proposal for
enhanced economic policy coordination in the euro area to improve
competitiveness would be submitted to the heads of state and government
at the forthcoming meeting.
Furthermore, the Federal Government did not submit to the German
Bundestag an unofficial document prepared by the Presidents of the
European Commission and of the European Council meeting of 25 February
2011 with the title “Enhanced Economic Policy Coordination in the Euro
Area – Main Features and Concepts”, which described essential features
of the Pact – later referred to as Euro Plus Pact. The official draft of
a “Euro Plus Pact” was handed over to the Bundestag on 11 March 2011. At
that time, it was no longer possible for the German Bundestag to discuss
its contents and to exert an influence on the Federal Government by
giving an opinion because the heads of state and government already
agreed on the Pact on 11 March 2011 already, i.e. on the same day.
This press release is also available in the original german version.
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