Karlsruhe judgment on EU debt: smarter than the law allows


It is a matter of legal prudence to be more generous when interpreting the EU treaties than when interpreting the Basic Law.

Judges at the Federal Constitutional Court pronouncing the verdict

The Second Senate of the Federal Constitutional Court on Tuesday Photo: Uli Deck/dpa

the Supreme Court accepts that the EU can incur debt – only for specific purposes, limited and limited in amount. But at least. A few years ago nobody could have imagined that Karlsruhe would let something like this get away. The turning point has obviously also arrived at the Federal Constitutional Court. All must put aside old certainties.

One quickly understands the leap the constitutional court has made here when one reads the minority vote by constitutional judge Peter Müller, who is the only one who sticks to the old, strict Karlsruhe line: the contracts do not provide for any borrowing by the EU, so a mega event can also happen like the corona pandemic will not change anything about this. Whoever allows an exception only invites people to invent new exceptions, according to Müller’s argument.

Admittedly, critics of the debt-financed EU Corona Fund agree that there are good political reasons for this. But if something is not provided for in the contract, the EU treaties would have to be changed. Legally, that’s logical.

But anyone who argues like this will destroy the EU. Because the hurdles to a treaty change are much higher than domestic hurdles to a constitutional change. The Basic Law can be adapted to new requirements with a two-thirds majority in the Bundestag and Bundesrat. On the other hand, every one of the 27 EU states has to agree to a change in the EU treaties, including problem states such as Poland and Hungary. Above all, however, referendums are required in many EU countries, which are often hijacked by populists for their purposes.

It is therefore a matter of legal prudence to be more generous when interpreting the EU treaties than when interpreting the Basic Law. The EU must also be able to adapt to new needs. It is not a state, but “only” an association of states. But without the EU, the 27 member states would be politically irrelevant. The majority of the Second Senate at the Federal Constitutional Court has probably recognized this. Despite major legal concerns, she did not object to the loan-financed EU Corona Fund, which is supported by all EU countries.

It is ironic that this verdict was rejected by ex-politician Peter Müller of all people, even though he was elected to the Constitutional Court to make political thinking fruitful there. But now Müller argues like a conservative law professor, while the actual professors and former federal judges show that lawyers can also think politically and are sometimes smarter than the law allows.



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