Two Days in Karlsruhe: Losing the battle but winning the war?

AuthorEngelen, K.

On July 30, 2019, one major legal battle that prominent euroskeptic plaintiffs in Germany have been waging against the "ECB Enabling Act of 2013"-which transferred bank supervision to the European Central Bank--was decided by Germany's Federal Constitutional Court. And a day later, the constitutional judges in Karlsruhe held hearings on the other outstanding euro-related hot issue: the ECB's asset purchases.

The court rejected legal challenges to the first two pillars of European banking union and ruled that ECB's Single Supervisory Mechanism and the EU's separate Single Resolution Mechanism are legal, meaning they can be considered to be within the boundaries of Germany's basic law.

Referring to the experience from the financial crisis and considering the role of large banks operating in a monetary union, the judges argued that the ECB sharing oversight was "pivotal," because national regulators still retain "broad authority."

Andreas Vosskuhle, the court's president, took the position that the rules for the European Banking Union make full use of the legal framework of the constitution but do not overstep it. Germany's "constitutional identity" and the "claim to democracy" so far have been preserved. The judges, however, expressed concern about the dimension of power the ECB has because of its "wide mandate in the realm of monetary policy that is far-reaching and hard to fence in."

The judges warned that the rules installed to save systemically important banks are raising questions of democratic legitimacy, since both the ECB and the national supervisory authorities can operate quite independently.

A group of plaintiffs led by Markus Kerber, a Berlin law professor, Peter Gauweiler, a veteran Bavarian politician, and Bernd Lucke, founding member of the Alternative fur Deutschland--that started as party of Euroskeptics--had claimed that the EU treaties did not cover the decision to transfer supervisory power over eurozone banks to the ECB. They also claimed that the German constitution did not allow the government to put billions in...

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