Diritto amministrativo europeo

Il Bundesverfassungsgericht si pronuncia sul “salva stati”




Il Bundesverfassungsgericht si è pronunciato, il 18 marzo, sul meccanismo europeo di stabilità, riconoscendone la conformità alla Costituzione.

Come si legge nel comunicato stampa, “the constitutional complaints and the Organstreit proceedings are unfounded. However, considering its assent to Art. 4 sec. 8 of the ESM Treaty, the legislature is obliged to make comprehensive arrangements under budgetary law to ensure that the Federal Republic of Germany can fully and in time meet capital calls that are made according to the Treaty establishing the European Stability Mechanism“.

“a) As a right that is equal to a fundamental right, the right to vote, which is protected by Art. 38 sec. 1 GG, guarantees the self-determination of the citizens and guarantees free and equal participation in the exercise of public power in Germany. Its guarantees include the principles of the requirement of democracy within the meaning of Art. 20 sec. 1 and sec. 2 GG; Art. 79 sec. 3 GG protects these principles as the identity of the Constitution even against interference by the constitution-amending legislature. In view of this, the legislature must take sufficient measures to be able to permanently meet its responsibility with respect to integration (Integrationsverantwortung). In particular, it may not  relinquish its right to decide on the budget, not even in a system of intergovernmental governance. The principle of democracy requires that the German Bundestag remains the place in which autonomous decisions on revenue and expenditure are made, including those with regard to international and European liabilities. Admittedly, it is primarily the duty of the Bundestag itself to decide up to which amount financial guarantees are justifiable, while balancing current needs against the risks of medium-and long-term guarantees. But it follows from the democratic basis of budget autonomy that the Bundestag may not consent to an intergovernmentally or supranationally agreed automatic guarantee or performance which is not subject to strict requirements and whose effects are not limited, and which once it has been set in motion is removed from the Bundestag’s control and influence. Furthermore, the principle of democracy requires that the German Bundestag is able to have access to the information which it needs to assess the relevant background and consequences of its decision. 

It is not from the outset an infringement of the democratic principle if the legislature is restricted to a particular budget and fiscal policy. This can, in general, also take place by transferring essential budgetary decisions to bodies of a supranational or international organisation, or by the assumption of corresponding obligations under international law. It is primarily for the legislature to decide whether and to what extent this is reasonable. However, the Federal Constitutional Court must ensure that the democratic process remains open, that legal re-evaluations may occur on the basis of other majority decisions, and that an irreversible legal prejudice to future generations is avoided.

So far, the Senate has not had to decide whether and to what extent an ultimate limit of payment obligations or of liability commitments can be derived directly from the principle of democracy. Such an ultimate limit following directly from the principle of democracy could only be exceeded if payment obligations and liability commitments took effect in a way that the budget autonomy was not merely restricted, but suspended for at least a considerable period of time. This could only happen in case of a manifest breach of ultimate limits“.

b) According to these standards, the constitutional complaints and the Organstreit proceedings are unsuccessful“.



Leggi il testo della sentenza (in inglese, sul sito istituzionale)