Wrench in the works
June 22, 2012
It is not a bad thing at all that the German president has caused quite an awkward situation for Chancellor Angela Merkel. Her government has the tendency to push important decisions through parliament at the very last minute, and at some point that was bound to backfire. It serves her right!
It's also not a cause for concern that Gauck decided not to immediately sign the German law regarding the introduction of the European fiscal compact once it has been approved by parliament next week. Why not let the Constitutional Court thoroughly check the text to determine whether it is consistent with foundations of Germany's legal system. The court's concerns are serious, and it would be dangerous if Germany ratifies text - making it binding under international law - only for the judges to determine after the fact that should never have happened.
In any case, the fiscal compact isn't scheduled to take effect until 2013. Merkel just wanted to push it through ahead of parliament's summer break because it's close to her heart and because she wanted to send a message to countries that are still hesitant. If both houses of parliament approve the fiscal compact next week as expected, the message is evident even if formal ratification with the president's signature is still pending.
Devastating signal to financial markets
It's a totally different story where the European Stability Mechanism is concerned. The financial crisis has hit a growing number of eurozone nations and the funds in the ESM's predecessor, the European Financial Stability Facility (EFSF), are slowly running out. Everyone expects that the permanent bailout fund - the ESM - will start operation in July to supplement the EFSF. Weeks of uncertainty over whether the ESM will come into being at all would send a devastating signal to financial markets.
If there were no other choice to prevent a massive breach of the constitution, one would have to take that major risk. But the ESM treaty text has been available for quite some time, the president has capable lawyers at hand and it is not likely that a single German constitutional lawyer would refuse his request to go through the treaty with a fine comb to ensure its constitutionality. It may be unthinkable for the legal officials in Karlsruhe to examine a text without a written request, but the president has a political job and should act accordingly.
It's up to Gauck
Germany's Constitutional Court claims it is common practice for a president to withhold his signature at the court's request. In reality, this was never an issue until 2005, when President Horst Köhler withheld his signature on new flight safety legislation pending further examination by Germany's top court.
It is not clear what the major constitutional concerns might be. In April, the Bundestag decided in minute detail on how to approve every single important decision concerning the EFSF and the ESM bailout funds - based on a previous ruling by the Constitutional Court that ensures Germany's national budget powers remain untouched.
If Gauck, after a meticulous assessment, has no objections, he should sign the German ESM law immediately after its approval by parliament. He is the head of state. According to the constitution, he doesn't have many powers - but where he does, he should do them justice.
Author: Peter Stützle /db
Editor: Sean Sinico