Spot the differences between these two constitutional courts

tribunal constitucional alemánIn its ruling of 12 September 2012, the German Constitutional Court approved the European Stability Mechanism (ESM) and the Fiscal Compact, which envisages the possibility that a country’s budget could be controlled by the European Union if the budget didn’t follow the EU fiscal diet. The petitioners claimed that the ESM and the Fiscal Compact were in contradiction with the German Constitution, since they attempted to limit the national sovereignty over a critical element of public policy, that is, the national budget. According to an analysis by Stefan Auer,

(T)he Court declared that this does not present any problem to Germany because the Federal Republic will never get itself into such a situation. After all, the German Basic Law prohibits incursion of unsustainable debt. Indirectly, this interpretation cements Germany’s leadership of Europe. There can be little doubt that other nations might find themselves in breach of the Fiscal Compact, regardless of whether the rule is incorporated into their respective national constitutions. Although the German Constitutional Court would be reaching beyond its jurisdiction if it was to comment on the quality of Greek democracy under the current tutelage of its “Troika” of creditors (the International Monetary Fund, the European Commission and the European Central Bank), the ruling implicitly accepts the claim that in a meaningful democratic system the national parliament has to retain control over its budget.

Political leaders as well as media outlets awaited the outcome impatiently. The Guardian even did a rolling coverage of the news from 7am to 7pm. European leaders were eager to hear about the Court’s take on the matter. They all expressed their relief at the end of a very intense day.

tribunal constitucional portuguésLast Friday, 5 April, the Portuguese Constitutional Court ruled that some of the austerity measures adopted by the national government in order to comply with the demands of the EU bailout were in contradiction with the national Constitution. The measures scrapped by the Court included the cuts to unemployment and sickness benefits, the suspension of public servants’ salaries and the cuts of pensions.

Visibly disturbed by the ruling, Portuguese Prime Minister, the conservative Passos Coelho, addressed the nation on TV last night and framed the situation in the country as a “national emergency”. He said that the alternative to the measures ruled out by the Court “would be… to submit to another (bailout) programme… That is what we must avoid… We must do everything to avoid a second bailout. I cannot allow us to waste the sacrifices that the Portuguese people have made in recent years.” He accused the judges of creating extra “fragility”, “uncertainty” and “unpredictability”. In Brussels, the European Commission issued a statement warning Portugal that “any departure from the programme’s objectives, or their re-negotiation, would in fact neutralise the efforts already made and achieved by the Portuguese citizens”. For his part, German finance minister Wolfant Schauble has reportedly said on a German radio programme that, in spite of all the efforts made so far, Portugal “needs to take new (austerity) measures after the (Constitutional Court’s) decision”.

Last September it seemed that constitutional courts had to be respected as ultimate guarantors of the rule of law and the rights enshrined in national constitutions. Today, about six months later, entirely the opposite seems to be the case. Even though both the German and the Portuguese Courts play similar roles in their respective legal contexts, while the former’s take is received with laud and honour, the latter is deemed responsible for a new European drama. Spot the differences.

Koldo Casla



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