Court challenges

Dr. Christoph Degenhart is a constitutional lawyer and expert on constitutional law as well as on media law. He teaches at the University of Leipzig in eastern Germany.

DW: What is your criticism concerning the process of pushing these two instruments through parliament?

Christoph Degenhart: The process was unduly fast-tracked and thus didn't leave members of parliament much room for judicious debate. Essentially, it's about the fact that the government didn't disclose the significance and consequences of the treaties and only insufficiently informed parliament on these issues. So, parliament was not able to decide based on sound facts. In addition, the government is keeping quiet about certain things and isn't adhering to its own assertions. For instance, at the EU summit, direct aid to banks via the ESM was decided upon, and that wasn't provided for in the ESM treaty.

You have also criticized the formal procedure by which the law was passed - aren't you satisfied with a two-thirds majority in the vote?

No. Where immediate bank aid is concerned: it's not provided for in the ESM treaty, and so it runs contrary to the contract. That's a breach of law before the contract was signed. We believe that the ESM plus the fiscal pact plus an amendment of the European Treaties by cancelling the ban on bailouts will cause such an effective transformation in the economic and currency union that a two-thirds majority does not suffice - you need a referendum.

Apart from infringement of the 'no bailout'-clause, which makes it illegal for one member to assume the debt of another, you've criticized the unlimited liability and the problem that this treaty appears to be non-redeemable. What other points of criticism do you have concerning the ESM and fiscal pact?

A further important issue is that there are no effective controls on the ESM, which will amount to a large international financial institution and will command gigantic sums. Its actions are not transparent; it enjoys immunity; and it can't be hauled to court. It can't be controlled by the Bundestag or by a parliamentary committee. It operates nearly without control. As far as I am concerned, that is irreconcilable with an EU that is beholden to democratic principles.You are in favor of a referendum. How should tools to save the euro be used in a democratically legitimate way?

It wouldn't be necessary to vote on every single instrument per referendum. The question is: Does Germany's constitution need to be 'opened' to the extent that it would allow for an adequate fiscal transfer between stronger and weaker countries on a European level like the transfer that already exists on a national level? Should there be changes in the constitution that would allow for intensive financial supervision? That's the crucial question. Do we, in effect, want to give up sovereignty over our budget and public finances?

Critics call you skeptical of Europe for leveling this case. Are you merely opposed to the form or also to the contents of the efforts to save the euro?

We are by no means skeptical of Europe. But Europe can only function in the long run if it is operated by governments based on citizens' consensus. To date, citizens have been ignored. We're also opposed to reducing Europe to the euro. I don't agree with the assertion "If the euro fails, Europe fails." Europe is more than the euro. Most of all, Europe is democracy, in principle a European idea. We can't sacrifice democracy for the euro.

Critics of your complaint also say all requirements from previous rulings by the Constitutional Court were fulfilled - what's your response to that?

For one, according to international law, the participation of parliament is not binding. For another, as you can tell already, the Bundestag can't withstand the political pressure. The regulations to include the Bundestag are a step in the right direction. But all of that isn't enough. In addition, the measures are vague, liability is unlimited and controls are insufficient.

How do you rate your chances of success in Karlsruhe?

As an authorized proxy, I never make statements on prospects of success.

Interview: Daphne Grathwohl / db
Editor: Greg Wiser