Drifting into Politics Is Germany's High Court Anti-European?
Germany's Federal Constitutional Court is one of the country's most formidable institutions. Yet recently it has faced criticism for its rulings on the euro and European unification. Have its justices crossed the line between jurisprudence and politics?
In early September, Andreas Vosskuhle set off for Strasbourg. The president of Germany's Federal Constitutional Court -- the country's top court -- wanted to elucidate his idea of a "Europe of tomorrow" to some 30 members of the European Parliament at Maison Kammerzell, a historical restaurant in the French city.
It wasn't a pleasant evening for Vosskuhle. It almost seemed as though the members of parliament were turning the tables and placing the chief justice of Germany's highest court in the dock. "Vosskuhle was raked over the coals," says one participant, adding that there were no party lines when it came to the criticism. One member even complained that the court is seeking to harm the European Parliament with its decisions. Another argued that the Karlsruhe-based court simply doesn't comprehend Europe's idea of democracy.
After a barrage of questioning that lasted two hours, Vosskuhle finally lost his patience. "Not a single person here has mentioned the words 'citizens' or 'voters,'" he said, seeking to rebuke the politicians. "Is your own power the only thing you care about?"
Decisions Unpopular in Europe
Be it in Berlin or in Brussels, many politicians have little that's positive to say about the German Constitutional Court these days. The justices are being very publicly accused of overstepping the boundaries of their responsibilities and of placing themselves in the position of legislators. Some politicians are so filled with misgivings they worry the justices have entered into some kind of secret pact with forces that view the euro to be an act of German self-abandonment and want to turn back the clock on European integration.
Norbert Lammert, president of Germany's federal parliament, the Bundestag, even stated recently that he could detect a whiff of "skepticism towards Europe" in the court. Martin Schulz, the German president of the European Parliament and the Social Democrats' leading candidate going into May's elections for the EU's legislative body, has worded it even more strongly, saying, "I don't think the Constitutional Court has understood how democracy works at the European level."
The Constitutional Court is one of Germany's most venerable institutions. Germans love the idea of an authority that stands above partisan squabbling -- one that doesn't orient its decisions around current trends, but rather bases them on a literal interpretation of the constitution.
But the court is no stranger to harsh criticism either. During the 1970s, for example, a federal minister, Herbert Wehner, then the head of the center-left Social Democrats' parliamentary group, spoke in deeply disparaging terms of the Constitutional Court when it threatened to get in the way of then-Chancellor Willy Brandt's policies of détente with Moscow and East Germany, politics aimed at easing Cold War tensions. Wehner said he wouldn't allow the "assholes" in Karlsruhe to ruin Brandt's Ostpolitik rapprochement policy. Still, the court has always seemed able to survive such attacks as long as it knew it could count on public support.
At the moment, though, a shift in sentiment appears to be taking shape. Two weeks ago, the Constitutional Court ruled to overturn a restrictive clause stipulating that any party seeking to enter the European Parliament must clear a 3-percent hurdle. The decision drew widespread criticism on the editorial pages of German newspapers. "It sends the following message for the European elections," wrote the influential Süddeutsche Zeitung newspaper: "Protest voters, animal rights activists and any other particularists, head to the ballot box!" A survey conducted for SPIEGEL by pollster TNS Forschung also shows voters are critical of the decision. Some 54 percent queried said the ruling wasn't a good one, and only 39 percent signaled their approval.
Indeed, applause for the court's most recent rulings has largely come from dubious sources, such as the euro-critical Alternative for Germany (AFD) party and its leader Bernd Lucke. The party would like to see Germany leave the common currency area and is hoping to use that platform to score seats in European elections this spring. "The European mission is inherent to the German constitution," says Manfred Weber, a member of the European Parliament with the Christian Social Union, the Bavarian sister party to Chancellor Angela Merkel's conservatives. "But I don't see that the court in Karlsruhe is fulfilling this function."
A Euro-Critical Force?
So has the Constitutional Court become something of an Alternative for Germany disguised in justices' red robes?
"I don't feel that the Federal Constitutional Court, with its decisions, has seriously hindered European integration in any area," Vosskuhle says, defending the institution. To the contrary, he believes that the Karlsruhe court's legal review of European unification, publicly deliberating and clarifying the issue as it did, has helped strengthen public trust in integration. "In this way, the court is helping to ensure that the European house is being built in a way that is stable and is as close to its citizens as possible," he says.
Vosskuhle also gives the court credit for putting the brakes on radical movements in Germany. "It is no coincidence that anti-European currents are finding less momentum in Germany than in other (EU) member states," he says. But is it really the job of the justices on Germany's Constitutional Court to think so politically?
In the past, Constitutional Court justices generally deflected criticism. Why, after all, should a justice who is elected for a 12-year term and cannot be removed from office by anyone care about criticism from politicians? The justices are not obliged to follow instructions and their rulings have legal force.
Are Justices Ruling on Their Own Fates?
But now they are being accused of ruling on their own fates and of blocking European integration because they fear that they themselves will ultimately become subordinate to the European Court of Justice in Luxembourg, the EU's highest court. The justices view such allegations as slanderous, seeing themselves instead as champions of finding a balance between the judicial powers in Europe.
During a panel discussion in Berlin last Thursday, Vosskuhle sought to defuse the tense topic with a joke: "As to the question of who has the last word -- that's a question that should be asked as infrequently about the European Court of Justice and the Federal Constitutional Court as it should of one's spouse." In general, though, the justices in Karlsruhe haven't done very well at dealing with such charges.
Some of the justices, like Vosskuhle, come from the world of academia, while others were previously career judges. Few are familiar with the inner workings of the political world, which often requires navigating extremely tricky situations. One member of the court recently lamented that he found the "duplicity" of politicians to be repulsive.
The justices in Karlsruhe feel their opinions are being maliciously misinterpreted by members of parliament and EU-friendly legal experts who, in submissions to trade publications, accuse the court of interfering excessively on European integration. "The European legal experts are building up straw men," Vosskuhle sniffed during the Berlin panel. For a moment, it sounded like he was losing his composure.
Vosskuhle and his colleagues seem to sense machinations everywhere they look at the moment. Members of the court were also affronted by the numerous interviews given to the media by top officials at the European Central Bank about the Karlruhe court's review of the permanent euro bailout fund, the European Stability Mechanism (ESM). Many of the justices felt it was akin to firing up a propaganda machine against the court. Members of the Constitutional Court were also miffed when ECB head Mario Draghi recently sought to woo former court justice Udo Di Fabio as an advisor during the sensitive proceedings. Di Fabio turned him down, but the fact that Draghi even asked deeply offended justices in Karlsruhe.
A Sorcerer's Apprentice
At the moment, the court is looking a lot like a sorcerer's apprentice -- one that is unable to get the genie it has unleashed back into the bottle. Over the years, the court, established in West Germany after World War II, has penetrated deeper and deeper into the political realm. In addition to determining violations of the constitution, it has also often provided politicians with the interpretations of the law they were hoping for. But there's an inherent danger there: Those who enter into the political arena quickly learn that this is not a place where fights over issues are conducted using the most gentlemanly means.
Vosskuhle was promoted in March 2010 to become the court's chief justice. Although he lacks the professorial rigidity of his predecessor, Hans-Jürgen Papier, his political will seems to be much greater.
During his term at the head of the court, he has steered it into a collision course with the societal policies of the government in Berlin. The court is divided into two senates, the First, which is headed by the deputy chief justice of the court, Ferdinand Kirchhof, and the Second, which is headed by Vosskuhle. In one case, Vosskuhle and his fellow justices on the Second Senate ordered that tax write-offs granted to married couples should be expanded to same-sex unions. The First Senate also dealt a blow to Chancellor Merkel's policies when it ordered that the right to adoption in certain instances must also be extended to same-sex unions. Although many consider this to have been the correct approach, it left many conservatives within Merkel's party scratching their heads and asking whether it was within the court's jurisdiction to make rulings on societal policies.
Spanner in the Works
But it is the court's decisions on European integration, under Vosskuhle's stewardship, that have done the most to heat up the debate on whether Karlsruhe is positioning itself as some kind of parallel lawmaking body. In their 2009 ruling on the Lisbon Treaty, the EU legal framework that replaced the failed attempt at creating a European constitution, the justices stated that there was little wiggle room left for transferring greater powers from Berlin to Europe. The court ruled that if the EU wanted to evolve towards becoming a United States of Europe, it would have put deeper integration up to a popular vote.
Even then, the question was raised as to whether it is really the court's role to help the people try to find their will. And whether in this instance the court might be playing voters against members of parliament, or seeking to control the way in which the German constitution continues to evolve. Could it be that the court has been throwing a spanner in the works of European integration in order to avoid suffering a fate similar to that of the German central bank, the Bundesbank, which for decades had been the bulwark of German power but has now been overshadowed by the ECB?
It's a suggestion that Vosskuhle vehemently denies. He said on Thursday that the court is on the side of the people and that without the aid of the legal system, they wouldn't have a voice. "It would not be in the interest of the people if we were constantly being praised by the government," he said. Of course, parties like the euro-critical Alternative for Germany are seeking to tap that same sense of dissatisfaction.
Meanwhile, doubts are growing in Karlsruhe as to whether the court always holds to the principles of judicial self-restraint or if it is actually committing the same kind of break-away legal decision-making it is trying to prevent at the EU level.
In a ruling announced in early February, the court's Second Senate declared that the ECB had supposedly overstepped its mandate when it announced that it would purchase unlimited amounts of sovereign bonds, if necessary, to prop up the euro. In a sharply dissenting opinion, Justice Gertrude Lübbe-Wolff accused her colleagues of overstepping the boundaries of their own authority.
Court Fights To Keep Last Word
The ECB ruling does contain an EU-friendly first from the court, with Karlruhe referring the case to the European Court of Justice (ECJ) for a preliminary ruling. Still, Vosskuhle also promptly announced at the time that the justices at the Constitutional Court wouldn't just accept a ruling from the Luxembourg court silently, claiming that the Karlsruhe institution would have "the final say."
In other words, the ECJ ruling will only be permanent if it suits the Constitutional Court in Karslruhe. "The judiciary exists on a basis of mutual acceptance," warns Juliane Kokott, the German advocate general at the ECJ. She says the Constitutional Court needs to remain conscious that it serves as a "role model." She adds, "It cannot play with fire in its decisions on Europe."
The ruling on the 3-percent hurdle in European elections has also done little to improve the mood in Brussels toward the Karlsruhe court. In its ruling two weeks ago, the court argued that because there is no government attached to the Strasbourg-based European Parliament, it could accept a greater amount of party fragmentation. But it was a strange position for a German court to take, seeing as the hurdle for a party to enter into parliament in Germany is five percent.
Vosskuhle says he considers the ruling to be a service to voters. In Brussels, however, fears are prevailing that it will enable separatists and political pests to gain broader footing in parliament. And these fears are not unfounded. A poll commissioned by SPIEGEL found that 28 percent of voters could imagine casting ballots for smaller parties in the May 25th election.
"The ruling is backward-looking," says Günther Oettinger, Germany's member of the European Commission. "It befits the European Parliament of the 1980s. I am certain that Karlsruhe will have to correct its case law in 10 years."
Nevertheless, it wouldn't be fair to simply write Vosskuhle off as anti-European. He vividly tells the story of his time as a 12-year-old exchange student in France. At the time, the grandparents of his host family didn't want to eat at the same table with him. "Not with a German," they said, with memories of the war still fresh in their minds.
"I personally view myself as a staunch European and I have considered and still do consider the idea of a federal Europe as a long-term objective to be sensible," Vosskuhle says. But building such a Europe also means constantly entering into uncharted territory, and there is no legal blueprint for its construction. This is precisely Vosskuhle's dilemma -- he has to provide politicians with enough maneuvering room for experimentation, but it is exactly these kinds of experiments that raise suspicions among German legal experts, who are more reassured when they are able to keep things in check.
At times it sounds almost as if Vosskuhle has an emotional relationship to the legal clauses in his world. "Law is Europe's most stable foundation," he said during his lecture in Berlin. He made it sound as if the only thing needed to solve the EU's crisis would be dispatching a few capable German lawyers to Brussels.
REPORTED BY MELANIE AMANN, DIETMAR HIPP, RENÉ PFISTER AND CHRISTOPH SCHULT
Translated from the German by Daryl Lindsey
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