After the Decision is Before the Decision

Russell Miller

Russell A. Miller

Washington and Lee School of Law

Russell A. Miller was a DAAD/AICGS Research Fellow in 2015. He joined the Washington and Lee law faculty in 2008. His teaching and scholarly research focuses on comparative law theory and methods, comparative constitutional law, German law and legal culture, and public international law. Previously, he taught at the University of Idaho College of Law and has been a guest professor in Germany.

Professor Russell Miller is a Professor of Law at Washington & Lee University School of Law, as well as the Co-Editor-in-Chief of German Law Journal. Professor Miller has also co-authored an upcoming book with Donald P. Kommers entitled “The Constitutional Jurisprudence of the Federal Republic of Germany.” Click her for more information about this forthcoming book.

Following its surprising, premature exit from this summer’s UEFA European Soccer Championship, it is understandable that Germany has turned its hopeful eyes once again to the international game.  Yes, qualification for the 2014 World Cup is underway.  And Germany is winning again, adding a 2-1 victory over Austria to an earlier 3-0 triumph over the Faroe Islands.  The Nationalelf is well ahead in its qualifying group.  But these are expected victories in the most preliminary stage of Germany’s drive for a fourth star.  The team’s website declares:  “Despite their success, Head Coach Löw and his players are not satisfied.”  The games that matter await them in Brazil two years from now.

We are in much the same position following the German Federal Constitutional Court’s decision, which allowed the country’s ratification of the European Stability Mechanism (ESM) Treaty to go forward.  This game led to an utterly predictable result.  And it was only the latest legal episode in the bigger, never-ending story of Germany’s awkward integration into Europe.

The Court’s Second Senate rejected temporary injunction applications that would have kept Germany out of the ESM until the Court could rule on the substance of several complaints that alleged violations of parliamentary prerogatives and the principle of democracy (Articles 20, 38, and 79 of the Basic Law).  Europe’s flailing effort to contain and ultimately control the debt crisis has been left to stagger on.  But considering the breathtaking implications for the world economy had the Court blocked Germany’s essential participation in the new permanent rescue apparatus, there was as much suspense in this judicial drama as there was in Germany’s recent fixture with the Faroe Islands.  Hours before the Court’s Second Senate announced its decision, a German colleague summed up the result that legal experts were predicting:  “Of course the Court will approve the ESM.  What else can it do?”  Showing their great relief over this anti-climax, currency and securities exchanges nevertheless made gains immediately after this latest victory for Europe was announced in Karlsruhe.  As expected, the decision also pronounced limitations on further or ongoing German integration.  This has been the Court’s game plan across decades:  tolerate the latest manifestation of European integration while using each case to articulate or reassert domestic constitutional limits on that process.  Two balls hit the back of the net in this regard.  First, the Court insisted that Germany’s ratification of the ESM Treaty could go forward only if the Parliament’s ratification established, as a matter of international law, that Germany’s commitment to the ESM could not be pushed beyond € 190 billion without new and explicit approval from the Parliament.  This, the Court explained, is necessary to maintain Parliament’s democratically legitimated budgetary authority, which the Court regards as a fundamental piece of Germany’s unalterable constitutional identity.  Second, the Court reinforced Parliament’s competence for further European integration by demanding that Germany’s ratification contain reservations to the ESM Treaty’s confidentiality provisions.  If strictly construed, the Court worried, such confidentiality rules might have been invoked to hinder or prevent the flow of information about ESM policy to the German Parliament.  The first of these limitations was the slightly more impressive of the two shots.  But in the event, it was nothing spectacular.  In making the point about Parliament’s budgetary prerogative, the Court relied extensively on its decision from last September in which it upheld Germany’s participation in Europe’s ad hoc efforts to stave off Greece’s financial collapse.

The Court emphasized that it was only rejecting the requested temporary injunction, even though it had taken the extraordinary step of expanding its review at this stage to include a summary assessment of the underlying, substantive constitutional challenges.  Still, a full review on the merits awaits the Court.  That is, there are more games on the horizon (Ireland and Sweden lie ahead for the national club).  Above all, the big game still must be played, involving the question of the final character of Germany’s place in an ever-closer European Union.  The Court’s ESM decision joins much of the Court’s preceding jurisprudence in guaranteeing that Germany’s participation in any comprehensive political union—a United States of Europe—will likely require significant constitutional reform.  Resolving that issue will be every bit as difficult as slipping past La Roja in Rio for the World Championship in 2014.  But even if the Court’s ESM decision gets us no closer to the inevitable end-game, some comparative reflection might give us a sense of where Germany stands with respect to a political and budgetary union.  For example, the Court’s insistence on Parliament’s approval of new or expanded European power—what the court calls the Kompetenz-Kompetenz—suggests a stubborn sovereigntism.  The Court patrols this boundary especially against European aggrandizement through the German government’s participation in international or European legal commitments that might lead to supranational or international Automatismus.  The German government, the Court explained again in its new decision, cannot require Germany to cede its constitutional identity by creating international law obligations.   By comparison, in 1919 the United States Supreme Court ruled in Missouri v. Holland that the federal union could do just that.  The Supreme Court had earlier held that the Constitution assigned the authority to regulate migratory birds to the states and not the federal union.  But in Missouri the Supreme Court upheld federal legislation regulating migratory birds because it had been enacted to fulfill the federal union’s new commitments under the Migratory Bird Treaty of 1918.  International law had been used to recalibrate the balance of federalist power.  This, however, unfolded as industrialization and the thickening national market were making federal centralization an accepted inevitability in America.  On the terms of the Federal Constitutional Court’s ESM decision, however, further European integration and centralization is not as self-evident as federal centralization must have been to the Supreme Court in Missouri.

One can thrill at, and learn quite a lot from, a team’s performance in utterly predictable preliminary matches.  Of course, winning is grand.  And Germany is learning in these early qualifying games that Mesut Özil, Mario Gotze, and Marco Reuss truly are the squad’s shining stars.  But it is prudent to recall Sepp Herberger’s profound soccer wisdom:  “After the game is before the game.”  Until Germany decides its ultimate European fate—probably as a matter of significant constitutional reform—we are due for many more predictable Constitutional Court decisions like the ESM Case:  yet another victory for Europe but with limits ensuring the fragile vitality of German constitutional identity.  After the decision is before the decision.


The views expressed are those of the author(s) alone. They do not necessarily reflect the views of the American-German Institute.