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Some commentators are saying that the German Constitutional Court judgement may still cause a need for a change in the ESM Treaty. The doubters’ objections centre first on the possibility that Germany could find its obligations increased by some subterfuge that is outside the control of the German Parliament. The ESM will normally take decisions by unanimity and in urgent matters by an 85 per cent vote. As Germany has a 27 per cent share of the votes, Germany has a veto under all circumstances.
In its recently-enacted Law, the Bundestag reserved various powers to itself so that in the end there may have to be a plenary vote of the Parliament before the German representative at the ESM can act. As a practical matter, it seems unlikely that the Finance Minister would agree to actions where he felt that the whole Parliament would not be supportive.
The doubters point to other reservations by the Court. They cite two issues of passing information to outsiders i.e. Parliament, and the implications of professional secrecy. Again, until the matters that he believed should be made public were indeed published, the Minister could decline to act. Lawyers should be able to draft a suitably binding statement to provide a mechanism that satisfies the Court’s needs on these points.
Statement by the President of the Eurogroup
"I take note of the decision of the German Federal Constitutional Court concerning the request for a preliminary injunction concerning the ratification by the German government of the treaty establishing the European Stability Mechanism (ESM) and the treaty on Stability, Cooperation and Governance in the Economic and Monetary Union (TSCG).
Taking full account of all elements of the ruling [GPB emphasis], I look forward to the completion of the outstanding procedures allowing for the Treaty Establishing the European Stability Mechanism to enter into force. I plan to convene the inaugural meeting of the ESM-Board of Governors in the margins of the Eurogroup meeting of 8 October…
The TSCG will enter into force once twelve euro area Member States have ratified it, but not earlier than 1 January 2013.”