Germany

III - Changes to Constitutional Law

Nature national instruments  
III.1
What is the character of the legal instruments adopted at national level to implement Euro-crisis law (constitutional amendment, organic laws, ordinary legislation, etc)?

Euro-Crisis Law has been implemented on the level of ordinary German legislation. There had been no amendments of the Constitution due to Euro-Crisis measures.

 

Constitutional amendment          
III.2    
Have there been any constitutional amendments in response to the Euro-crisis or related to Euro-crisis law? Or have any amendments been proposed?

There have not been amendments of the German Constitution because of Euro-crisis measures.

 

However, the decisions of the Bundesverfassungsgericht concerning the implementation of Euro-crisis measures have led to rules of constitutional level which were at least not explicitly written in the German Constitution. This is true for example for the term ‘overall budgetary responsibility’, which cannot be found in the Grundgesetz, or for the right to file a constitutional complaint against a German law implementing Euro-crisis law based on the right to vote for the German Bundestag (Art. 38 (1) sentence 1 GG). Nonetheless, there had been no amendments of the text of the German Constitution as a response to Euro-crisis measures.

 

Constitutional context   
III.3
If national constitutional law already contained relevant elements, such as a balanced budget rule or independent budgetary councils, before the crisis that are now part of Euro-crisis law, what is the background of these rules?

Since 2009 the German Constitution contains rules which aim at reducing the public deficit. They are often called ‘debt brake’ and can be found in Art. 109 (3) and Art. 115 (2) GG. These rules were the result of a longer discussion about the increasing German deficit since the German reunification and the downgrade of the New Economy at the beginning of the years 2000s. The effects of the Euro crisis had no or a minor impact on these rules. Nonetheless, EU law in general had an important impact because the discussion around the violation of the Maastricht criteria by Germany in 2005 had been well remembered. However, the German rules on public spending do not completely correlate with the rules for limiting public spending on the European level (see questions IX.4 and IX.5). The most important facts about the German debt brake are as follows:

 

Art. 109 (3) GG lays down the principle that the yearly public deficit must be financed without credits. According to Art. 109 (3) sentence 5 GG the Länder cannot finance any of their spending by credits. For the federal level, Art. 109 (3) sentence 4 GG provides that loans can be arranged up to an amount of 0.35 % of GDP. The Constitution also contains a clause about adaptations to economic circumstances and exceptions when these limits can be overstepped. The adaptation clause provides that when economic developments deviate from normal conditions, effects on the budget in periods of upswing and downswing must be taken into account symmetrically. Deviations of actual borrowing from the credit limits are to be recorded on a control account; debits exceeding the threshold of 1.5 percent in relation to the nominal gross domestic product are to be reduced in accordance with the economic cycle. Under exceptional circumstances, the rules of the debt brake do not have to be respected: Exceptions are natural catastrophes and unusual emergency situations beyond governmental control and substantially harmful to the state’s financial capacity.

 

These rules did not apply immediately from their adoption. There is a norm which sets a transition period. According to Art. 143d (1) GG, the debt brake entered into force for the budgetary year 2011, but the Länder can deviate from it until 31 December 2019 and the federal state until 31 December 2015.

 

Purpose constitutional amendment      
III.4
What is the purpose of the constitutional amendment and what is its position in the constitution?

Not applicable.

 

Relationship with EU law           
III.5
Is the constitutional amendment seen as changing the relationship between national and European constitutional law?

Not applicable.

 

Organic law      
III.6
Have there been changes to organic laws or other types of legislation that are of a different nature or level than ordinary legislation, in relation to Euro-crisis law or the budgetary process?

No.

 

Constitutional amendment and ordinary law    
III.7
If ordinary legislation was adopted in conjunction with a constitutional amendment, what is the relationship between the two?

Not applicable.

 

Perception source of legal change          
III.8
In the public and political discussions on the adoption of ordinary legislation, what was the perception on the appropriate legal framework? Was the ordinary legislation seen as implementing national constitutional law, or Euro-crisis law?

There hadn’t been a major discussion whether ordinary legislation was the appropriate legal framework. The discussion rather focused on the question whether the implementation of a European legal act concerns provisions of the German Constitution or even infringes the German Constitution. Legal discussions examined Article 23 GG and its scope of application, in particular in relation to the limits which Article 23 (1) sentence 3 GG in conjunction with Article 79 (3) GG defines for the implementation of EU law (see question IX.3).

 

Miscellaneous
III.9
What other information is relevant with regard to Germany and to changes to national (constitutional) law?

No other information.