Order of the First Chamber of the Second Senate of 4 May 2006
pursuant to § 93b in conjunction with § 93a of the Federal Constitutional Court Act
(Bundesverfassungsgerichtsgesetz – BVerfGG) in the version published on 11 August 1993
(Federal Law Gazette (Bundesgesetzblatt – BGBl) I p. 1473)
– 2 BvR 120/03 –

in the proceedings on the constitutional complaint

of Dr. E.

RULING:

The constitutional complaint is not admitted for decision.

GROUNDS:

The constitutional complaint concerns the International Monetary Fund’s policy on lending to the Republic of Argentina after the serious financial crisis in 2001 and, in particular, it is directed against the effects of the International Monetary Fund’s lending conditions on private holders of Argentine government bonds.

The constitutional complaint is not to be admitted to decision pursuant to § 93a.2 of the Federal Constitutional Court Act because it does not have any fundamental significance in view of the established case-law of the Senates and the Chambers of the Federal Constitutional Court on the protection of fundamental rights after sovereign rights have been transferred to a supranational organisation (Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 89, 155 (175); Order of the Fourth Chamber of the Second Senate of the Federal Constitutional Court of 4 April 2001 – 2 BvR 2368/99 –, Neue Juristische Wochenschrift – NJW 2001, pp. 2705-2706), and also because there is nothing to indicate that it should be admitted in order to enforce the rights specified in § 90.1 of the Federal Constitutional Court Act.

1. The complainant withdrew his constitutional complaint to the extent that it was directed against acts of the International Monetary Fund after 1 December 2001 which were done in connection with the introduction of statutory sovereign debt restructuring.

2. To the extent that the complainant has not withdrawn his constitutional complaint, it is inadmissible.

Its inadmissibility is based in part on the fact that the complainant failed to comply with the time limit for lodging a constitutional complaint, and because there is otherwise no suitable subject-matter of the constitutional complaint.

a) To the extent that the constitutional complaint is directed at the Act on the Articles of Agreement of the International Monetary Fund in its 1976 version (Gesetz zu dem Übereinkommen über den Internationalen Währungsfonds in der Fassung von 1976 – IMF Act), which was amended on 9 January 1978 (Federal Law Gazette II pp. 13 et seq.) and amended [again] by the Act on the Fourth Amendment of the Articles of Agreement of the International Monetary Fund of 27 June 2000 (Gesetz zur Vierten Änderung des Übereinkommens über den Internationalen Währungsfonds, Federal Law Gazette II p. 799), the complainant has not complied with the statutory time limit. Pursuant to § 93.3 of the Federal Constitutional Court Act, constitutional complaints against statutes must be lodged within one year from the time when they come into force. Even if one were to take the view that the period of limitation began to run when the Approval Act on the Last Amendment to the Articles of Agreement of the International Monetary Fund (Zustimmungsgesetz zur letzten Änderung des Übereinkommens über den Internationalen Währungsfonds) of 27 June 2000 came into force, the constitutional complaint is statute-barred. The Act came into force on 1 July 2000 whereas the complainant did not lodge his constitutional complaint until 27 October 2002, and thus not until after the one-year limitation period had expired. The question whether an Act amending previous legislation can cause time to start to run again for the lodging of a constitutional complaint against a statute in respect of provisions which are not affected by the amendment can thus be left open.

b) Furthermore, the constitutional complaint is inadmissible because it is not based on a suitable subject-matter for a constitutional complaint. The challenged acts of the International Monetary Fund, which were done in connection with lending to the Republic of Argentina, are neither sovereign acts of German public authority nor sovereign measures of a supranational organisation in respect of which the Federal Republic of Germany must provide constitutional protection to the subjects of fundamental rights.

The case-law of the Federal Constitutional Court shows that the acts of a non-German sovereign power can also affect the subjects of fundamental rights in Germany and that the Federal Constitutional Court has a duty in these cases to also provide constitutional protection against such legal acts (BVerfGE 89, 155 (175); Order of the Fourth Chamber of the Second Senate of the Federal Constitutional Court of 4 April 2001 – 2 BvR 2368/99 –, NJW 2001, pp. 2705-2706). This principle, which was initially developed in relation to secondary legislation of the institutions of the European Community (BVerfGE 89, 155 (175)), was subsequently extended to the legal acts of international organisations – in the specific case of the European Patent Organisation – (Order of the Fourth Chamber of the Second Senate of the Federal Constitutional Court of 4 April 2001 – 2 BvR 2368/99 –, NJW 2001, pp. 2705-2706). This only applies, however, to the extent that the international organisations are those that can affect the subjects of fundamental rights. This in turn is only the case where the organisations whose acts are challenged by the constitutional complaint have also been transferred sovereign rights within the meaning of Article 24.1 of the Basic Law (Grundgesetz). This is to be assessed by asking whether the organisation is granted power to take measures which will have a direct legal effect on individuals.

The International Monetary Fund does not satisfy these prerequisites. The Federal Republic of Germany has not granted the organs of the International Monetary Fund any powers to enact secondary legislation which has a direct effect vis-à-vis the citizens of member countries. The Articles of Agreement of the International Monetary Fund do not contain any provisions from which such powers could be derived. The purely practical effect of decisions of the International Monetary Fund on individuals must be clearly distinguished from the state giving the organisation authority to enact legislation with a direct effect on constitutionally protected legal positions of the citizens of member countries. The International Monetary Fund’s decisions to lend Fund resources to the Republic of Argentina only have an indirect, practical effect on the complainant. The decision not to redeem matured bonds of private bondholders, which is essentially the subject of the complainant’s complaint, was the political decision of the debtor – a sovereign state – and not a legal consequence of the challenged acts of the International Monetary Fund.

3. The giving of additional reasons is dispensed with pursuant to § 93d.1 sentence 3 of the Federal Constitutional Court Act.

No appeal may be made against this decision.