In its decision, last month, the Constitutional Court has given to the ECB in three-month to justify the purchase of bonds under its flagship recovery plan, or of losing the Bundesbank, as a participant, which raises questions about the future of the euro.
Berlin is likely to have the last word on whether the ECB sufficient justification and Finance Minister, Olaf Scholz, declared on Monday there would soon be a resolution to the decision.
“This is not a drama without resolution. We will soon see, there will be a resolution without drama,” Scholz said at a finance conference in Frankfurt, by videolink from Berlin.
The plaintiffs behind this case reported that they may bring a new action in justice against the new stimulus plans of the ECB, which could lead to more turbulence on the market. However, there was a changing of the guard at the German court in Karlsruhe on Monday.
One of the main changes is a new judge is appointed to a bench widely seen to be a narrow majority Eurosceptic: Astrid Wallrabenstein, who has been appointed by the pro-European Greens and has suggested that there should be a thaw in relations with the European Court of Justice (ECJ), which has erased the ECB plan.
It takes up space on the bench left vacant by Andreas Vosskuhle, president of the court whose term of office has expired, and is leaving. His role as the president goes to Stephan Harbarth, a conservative member of parliament for 2009-2018.
“It is much more Europe-friendly, as Vosskuhle,” said the first source, a professor of constitutional law who is well connected at the court and knows how to Wallrabenstein. “So, my prognosis is that, in the future, such decisions, as the ECB will not be caught.”
Wallrabenstein appointment could help open the way to a more conciliatory tone from the court, which experts say has a history of causing seizures, before softening his position.
“Usually what happens is that the court did something that makes people think it has gone too far, and then they do a little,” said Justin Collings, historian of the German constitutional court Brigham Young University in Utah.
A spokesman for the court said he could not speculate on the direction of future decisions of the court in view of the changes of staff, and each decision was taken on its own merit and by a group of eight judges of the trust.
“MORE THAN A GAME “
The constitutional court is divided into two senates, each with eight judges who deal with different cases. Wallrabenstein is going to join the second senate, which was made on May 5 of the decision on the bond purchases by the ECB.
Although the second senate has voted to 7-1 to pass the judgement, they aim for consensus. The arrival of Wallrabenstein promises to tip the balance, at least over time, said the second source, who is close to the court, noting that it is the first judge on the second senate, appointed by the Green party.
“Every new justice to change something. In a group of eight people, a person will make a difference,” said the source. “It may be more vigorous debate.”
The professor of law who knows the judges in Karlsruhe said the dynamic on the second senate “has been heavily influenced by the game Vosskuhle, and (Pierre), Huber”, a conservative who has described the May 5 decision as “imperative”.
Of Wallrabenstein, the professor adds: “It’s not going to go in search of an open conflict, but she has good arguments and it is more than a match for Huber.”
Wallrabenstein has shown that it is prepared to take a position.
In 2014, as a lawyer, she has represented a failure – event in Karlsruhe, the tribunal for the former spy agency contractor Edward Snowden heard by a commission of inquiry in Berlin.
She has already suggested a more flexible approach in relations with the ECJ, which has erased the ECB’s stimulus plan in 2018. The judges in Karlsruhe have decided not to be bound by the decision, claiming that the court had failed to control the actions of the ECB to the point of rendering its verdict “devoid of meaning”.
“The tone has become more severe in recent times,” Wallrabenstein says at the end of the month relationships between the courts. “Just carrying on like this, maybe becoming a little difficult now.”
Contacted by Reuters, at the weekend, Wallrabenstein has refused to comment further.
However, it has been quoted by Germany’s Frankfurter Sonntagszeitung weekly, saying that she hoped that “things would move in the right direction”, adding that it was now on the way to the end of an argument and say: “Forget it, let’s move on to something else.”
ENIGMA FOR BERLIN
The German court said that its decision May not apply to new measures from the ECB, leaving room for a new challenge.
However, while the plaintiffs behind the original cases have reported that they could bring a new lawsuit, the second source told Reuters that the Karlsruhe, the court ruled that he had made his point with the May 5 decision.
However, on 5 May, the decision still poses an enigma for Berlin, which is bound by the Karlsruhe court, but at the same time, do not want to undermine the independence of the ECB, whose unprecedented stimulus has kept the euro zone intact.
ECB watchers see two ways out: either the Bundesbank or the European Parliament, who has the right to question the ECB, is seeking a clarification about purchases of euro area bonds from the central bank.
Berlin must then accept or reject the justification. Rejection would require the Bundesbank to exit the system, and put a question mark on the role of Germany in the euro.
Additional reporting by Ursula Knapp and Paul Carrel; Writing by Paul Carrel and Madeline Chambers; Editing by Pravin Char
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