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NUMERO 19 - 15/10/2014

 Democratic Principle, EU Economic Policies and the German Federal Constitutional Court

The decisions issued between 2010 and 2014 by the German Federal Constitutional Court on the measures taken by European institutions regarding monetary and economic matters, have raised a broad discussion amongst legal scholars, politicians and the media. On the one hand, many experts, especially outside Germany, consider this Karlsruhe’s Jurisprudence as an indication of its commitment to protect specific national interests against the need for a common European view of economic policies in times of hard financial crisis. On the other hand, several voices in Germany have interpreted the decisions as aimed at legitimizing the German national worries related to the risks of the measures subdued to the control of the German Constitutional Court, doubting their democratic legitimation and their accordance with the Bundestag competences in budget and fiscal politics. In many cases, the Karlsruhe decisions on European Stability Mechanism (ESM), Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (Fiscal Compact) and Outright Monetary Transactions (OMT) seem to be reduced to a strict contrast between a “European” economic policy and a “Nationalist” BVerfG jurisprudence. If we observe the effective content of the decisions, we should actually come to different conclusions. If it is true that the German constitutional judges based their arguments on the national interpretation of democratic principle, constitutional identity and parliamentary competences as intended by the German Basic Law, it is equally true that such orientations can hardly be considered as opposed to the fundamental content of the European Treaties. The Treaty on European Union clearly describes a Union whose functioning is founded on the principle of representative democracy (art. 10 n. 1) and whose citizens shall have the effective right to participate in its democratic life (art. 10 n. 3); considers European institutions to be aimed at maintaining an open, transparent and regular dialogue with representative associations and civil society (art. 11 n. 2); sees national Parliaments as having the duty to provide an active contribution to the good functioning of the Union through full information by the European institutions as well as through their involvement in the evaluation of the implementation mechanisms of the Union policies (art. 12 lett. c). Such a perspective can hardly justify a radical conflict between the German Constitutional Court’s recent jurisprudence and the European Union’s conception as described by the European Treaties. It seems much more likely to recognize a basic common ground in both visions, built on the crucial role of the principle of democracy and an effective involvement of the representative institutions, at national and European level. The aim of this paper is to evaluate whether this assumption is correct. Through a detailed analysis of the German Federal Constitutional Court on the OMTs provisions, and comparing this decisions with the BVerfG’s jurisprudence issued between 2010 and 2014 on ESM and Fiscal Compact and on the one side, and the notion of democratic principle and representative democracy as intended by the European Treaties on the other, this articleaims to verify whether the arguments expressed by the German constitutional judges correspond to or contradict the above mentioned articles of the European Treaties. The final suggestion of the paper is to evaluate whether the German Constitutional Court, even if acting as a national tribunal, was not also operating in order to provide adequate support for some basic elements of the European Integration process as a whole, like the democratic principle and the respect of representative institutions – at both national and European level –that would end in the granting ofa suitable legal and political context forthe future European construction, which a huge part of the public opinion in the member States has been demanding for years... (segue)

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