It isn't often that German Chancellor Angela Merkel shows her displeasure at something. One of the chancellor's strengths is that she is able to keep her emotions in check, which explains why her fellow party members were so surprised when the subject of Germany's Federal Constitutional Court was raised in a meeting of the executive committee of her center-right Christian Democratic Union (CDU) two weeks ago.
The judges had just admonished Merkel for disregarding the rights of the parliament during efforts to rescue the euro. It was already the second ruling in this vein this year. Criticism of Germany's highest court is generally viewed as inappropriate in political circles, but this time the chancellor had had enough.
How, she asked, could she pursue reasonable policies if she had to reveal her negotiating tactics before every meeting with a European leader? "This takes me to my limit," Merkel complained, to a murmur of approval from her fellow CDU members. They quickly realized that the chancellor views the judges as unrealistic law professors with no understanding whatsoever of the challenges of everyday politics.
Keeping the Government in Check
Things have never been easy between Berlin and the Karlsruhe-based court. The Federal Constitutional Court was set up in 1951 to ensure that the state's institutions complied with the constitution of the newly founded Federal Republic of Germany. Since then, government politicians have often viewed the court as a gadfly that can declare laws invalid with the stroke of a pen. A sentence attributed to the late Social Democratic Party politician Herbert Wehner has become legendary: "We won't allow the assholes in Karlsruhe to destroy our policies."
It's in the nature of things that there is occasionally disagreement between the court and the political world. The court's job is to ensure that the government sticks to the guidelines laid down in the German constitution. Politicians, on the other hand, don't appreciate it when the court portrays them as underhanded rogues who bend the constitution to conform to their backroom deals. It also doesn't help matters that the court's judges generally enjoy a level of popularity that many politicians can only dream of.
Since the eruption of the euro crisis, however, there has been more at stake than the usual vanities. If the court's landmark ruling on the European Union's Lisbon Treaty is also taken into account, the judges in their trademark red robes have already crossed Merkel three times in the last few years. The Karlsruhe decisions read like indictments of a chancellor who, in the judges' opinion, is ignoring the basic rules of democracy with her bailout policies.
Citizens applaud them for their decisions, and it is of course the judges' job to keep the executive in check when necessary. There are those in Berlin, however, who increasingly suspect that the court is in league with those populists and euroskeptics who are fundamentally opposed to the project of European integration.
Fear of Irrelevance?
German Environment Minister Peter Altmaier, a member of Merkel's CDU, recently raged against the judges' criticism of Europe in a meeting of fellow party members. In Altmaier's view, the judges are motivated by a fear of irrelevance. And it's true that further steps toward integration typically do lead to a loss of power for the constitutional court, with the European Court of Justice gaining importance as more and more power is transferred to Brussels.
A powerful German institution has already fallen victim to Europe once before. When Germany was still using the deutsche mark, its central bank, the Bundesbank, had the last word on all questions of monetary policy. Since the introduction of the euro, however, the Bundesbank has lost its old luster, shrinking into a sub-organization of the European Central Bank (ECB). The Federal Constitutional Court is apparently determined to avoid a similar fate.
The power struggle is happening at precisely a time when the judges bear an historic responsibility. This time, the issue at stake is not some domestic political question like the national census or the subtleties of electoral law. Instead, the guardians of the constitution have nothing less than the country's prosperity in their hands.
If they stop the efforts to save the euro, it's possible that not only could they drag Germany and Europe into a deep recession, but they could also deal a death blow to unity on the continent. For this reason, Merkel's now-famous remark that "if the euro fails, Europe fails" was also intended as a warning to the Karlsruhe court.
The power struggle is entering a new round this week. On Tuesday, the court will consider requests for a temporary injunction on the permanent euro rescue fund, the European Stability Mechanism (ESM), and the fiscal pact, which is intended to force signatory countries to practice stricter budgetary discipline. Nothing has been decided yet. But just the fact that the judges have set a date for a hearing indicates how seriously they take the arguments of euroskeptics like Peter Gauweiler, a politician with the conservative Christian Social Union (CSU).