The German plaintiffs—the parliamentary Left Party, a conservative Bavarian legislator, and some 12,000 persons associated with the movement known as “More Democracy”—advanced arguments centering once again on the alleged lack of parliamentary involvement in the passage of the treaties. A related complaint was that the chancellor, in her haste to avoid financial market turmoil, failed adequately to negotiate with the parliamentary opposition. In response, the FCC announced that it would hear arguments on 10 July over whether to issue a temporary injunction against the implementation of the treaties, hoping to have a decision in three weeks. But after a marathon hearing of ten hours, the justices announced further that their ruling could not be expected until 12 September. The ESM treaty was to have entered into force on 1 July but would now be delayed by two months despite executive pleas of urgency. The Court is expected to uphold the treaties but not without reinforcing parliamentary control over euro zone policy and, perhaps more critically, not without exacerbating the euro zone’s financial crisis.
In assessing the propriety of judicial review over Germany’s European bailout policy, one needs to be reminded of the FCC’s exalted position in Germany’s constitutional order. First, the Court has defined itself as the ultimate “guardian of the constitution,” making clear that its guardianship extends to safeguarding the principles of both democracy and separation of powers. Second, the Basic Law explicitly authorizes the FCC to decide mere differences of opinion on constitutional matters among, and within, branches and levels of government. By contrast, the U.S. Supreme Court’s authority extends only to concrete cases that as a general rule can only arise within the framework of an ordinary law suit. Third, the Basic Law itself includes detailed provisions on taxation and budgetary management, including a recent amendment, ratified in 2009, requiring federal and state governments to balance their budgets. Americans would regard such details and policies as essentially legislative in nature and thus unfit for inclusion in a constitution, committed as they are to the famous Marshallian view that when it comes to a constitution, “only its great outlines should be marked [and] its important objects designated.”
Finally, and relatedly, the FCC can easily justify its reach in the euro crisis by reference to the Basic Law’s Article 23. One of its provisions requires the Bundestag and the Bundesrat to “participate in matters concerning the European Union” and obligates “the Federal Government [to] keep the Bundestag and the Bundesrat informed, comprehensively and at the earliest possible time.” The justices have seized on this language, together with the Basic Law’s complex budgetary articles, to fault the chancellor for acting too quickly on the euro treaties and to justify its enforcement of the principle of parliamentary democracy.