“A Constitutional Ghost From the Past”

The outgoing Bundestag is currently debating an amendment to the Basic Law to enact a multi-billion-euro financial package. The main issues are loosening the debt brake for defence spending and creating a special fund for infrastructure. What is at stake? We asked Florian Meinel, Professor of Comparative Constitutional Law and Political Science at the Georg-August University of Göttingen, for his insights.

1. Since last week, the Bundestag has been in a hasty crisis mode. Negotiations continue late into the night to enable political decisions within days that were unthinkable for years. What is happening right now?

The CDU/CSU and SPD are trying to convince the Greens of a constitutional amendment that would suspend the debt brake for defence spending, create a massive special budget for infrastructure expenditures, and slightly loosen the restrictions on new debts for the federal states. It all should be finalised by next week, as the lights begin to go out in the 20th Bundestag. The situation is so bleak that jokes seem to be the only appropriate form of comment: Two Bundestags meet, one says to the other… something along those lines.

Politically, the drama mainly consists of the complete loss of authority of a potential chancellor whose government program and political strategy barely survived the election victory for a few days. Constitutionally speaking, I see no strong argument against this approach. Since a constitutional amendment in 1976, the Basic Law explicitly grants the Bundestag its powers until the new one is constituted. This includes, in particular, legislation, which under the Basic Law also encompasses constitutional amendments. One may disagree with this, but that is the legal situation. All counterarguments I’m aware of are result-driven. In particular, the recent election does not diminish the “legitimacy” of the old Bundestag. Anyone who elects a Bundestag grants it legitimacy to act during this interregnum under Article 39 of the Basic Law. There is also no vague “will of the voters” opposing this. Legally, the will of the voters manifests itself in the constitution of the future parliament.

2. In your piece on the “Fiscal Hamlets”, you wrote on Verfassungsblog that the Federal Republic is currently experiencing nothing less than the splitting of its financial constitution. What do you mean by that?

At the time, two special funds were still planned – one for defence and one for infrastructure. They would likely have gone ahead, had it not been for the European Commission President’s “ReArm Europe” program, triggering the immediate suspension of the European fiscal rules for defence spending. This is now reflected in the revised Articles 109 and 115 of the Basic Law. The splitting lies in the fact that, alongside this, a constitutional normal regime – linking parliamentary budget rights, the regular budget, and the debt brake – is to be preserved at all costs, almost like a dogma defended through all sorts of legal contortions by creating parallel structures.

The deepening split between the general and defence budgets seems inevitable: Securing European defence after the de facto end of NATO can only succeed within a European framework, in a Euro-Gaullist architecture. This makes it inherently difficult to directly link defence policy to national parliaments. However, I would speak of splitting with regard to the planned special infrastructure fund. Such a massive shadow budget inevitably creates a second financial constitution. It is not subject to the same rules of parliamentary oversight, budgetary rule, or the democratic principles of annuality and comprehensiveness. As a result, fiscal policy would inevitably turn into strategic playing with these two constitutional levels, with a lot depending on whether a given task is classified as part of the regular budget or as an off-budget item. This special fund is, in essence, a budget behind the budget – or, to keep borrowing from Shakespeare’s imagery, a play within the play. It mirrors the scene in Act III of Hamlet, where the prince stages a play to confront the court with an uncomfortable, repressed truth.

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3. The debt brake also has a key role in the play we are currently witnessing. In your article on the “Fiscal Hamlets”, you described this role as “ghostly”. What makes the debt brake a constitutional ghost from the past?

First, its effects: the crumbling infrastructure or the dramatic backlog in meeting climate targets. But what struck me as especially eerie is how the debt brake is often defended with a shallow, privatistic fiscal morality (“our grandchildren will have to pay for this”, etc.), which obscures the real economic interests behind it – namely, the drive for a balanced budget (“black zero”). Those who want low public debt are primarily those concerned with maintaining an export-friendly industrial production environment. The export industry, in particular, depends on restrictive fiscal policies to prevent inflation and, consequently, wage increases.

Many argue that this effectively subsidises industries like the automotive sector at the country’s expense, thereby obstructing necessary structural transformations. Public debt, as I understand it – though I am stepping far outside my legal expertise here – interacts with other variables, such as economic growth, interest rates, and wage development in a dynamic system. Germany’s economic policy was once counterbalanced by the Bundesbank and collective wage bargaining, which effectively imposed a de facto constraint on expansive fiscal policies. The initial German belief that the European Central Bank would serve as a second Bundesbank has not materialised.

In this sense, the debt brake is a ghost because it emerged as a reaction to this disappointment, attempting to constitutionalise an economic policy framework that no longer exists. It effectively inscribes an industrial policy nationalism into the European single market, which – crucially – has its own fiscal rules. The debt brake is thus a longing for the old Federal Republic, embodied in a constitutional article – a key reason why we struggle so much to move beyond the status quo.

4. The debt brake will foreseeably only be reformed, not abolished, while a massive special fund creates a shadow budget. What are the democratic costs of this approach, particularly regarding parliamentary budget rights?

Well, the parliamentary budget right technically stays in place when the special fund is created, but it effectively ceases to apply under Article 110 of the Basic Law once the fund is operational. However, it doesn’t have to be this way. The planned Article 143h allows for a federal law to regulate the specifics. The Bundestag could use this provision to grant itself the same budgetary oversight and control over the special fund as it has over the regular budget. But then, of course, the question arises: What would be the point of this instrument in the first place? The coalition parties seem to view it mainly as a means of flexibility. As such, the greatest democratic cost may be that the fund has no clear commitment to climate and social transformation goals and that the designated purpose of “infrastructure” is entirely vague.

“Infrastructure” is one of those magic words of modern society – it sounds like smoothly functioning technology and good public services, something everyone wants, but in reality, it means nothing specific. Since everything is interconnected, almost anything can be redefined as infrastructure. For teachers commuting to work, railways are infrastructure, while for railway operators, schools training future employees are infrastructure. We will likely see every possible interest reinventing itself as an infrastructure concern.

One final note on democratic costs: We are currently deciding to address a moment of grave political danger exclusively through debt financing without – at least partially – raising taxes on those who have benefited the most from the status quo. That, too, comes at a democratic cost.

5. The Federal Constitutional Court has just ruled that the fast-track legislative process for constitutional amendment is constitutionally permissible. A good decision?

The disappointment of those who feel misled is, of course, understandable. The decision of the Federal Constitutional Court may be seen as an act of political restraint in a dramatic situation – a situation, mind you, in which it must succeed to free oneself from supposed transatlantic certainties in a short period of time and to contain dangerous political forces, both domestic and international. In such a situation, political action is sometimes only possible under extreme time pressure. However, I believe the decision has all constitutional arguments on its side. Instead of filing the application with the court, the members of parliament could have tried to gather the necessary majority for the earlier convening of the Bundestag under Article 39 (3) of the Basic Law. All the technicalities that supposedly stand in the way (such as the determination of the election result by an authority) are simply matters of ordinary law which cannot limit the right to assemble.

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Editor’s Pick

by CHARLOTTE HERBERT

For almost three months now, I’ve been working as an editor at Verfassungsblog – and as a winter-depressed newcomer to Berlin, I naturally took some time off right away. Lying on the beach with a meaningless book in my hands, I found myself reminiscing about my trip to Pennsylvania a few years ago.

In 2014, when I first read “I Am Charlotte Simmons” – actually sick in bed in Germany – I was introduced to the American class struggle, the brazenness of the academic elite, and the brutal failure of idealism in a way that was both cynical and utterly captivating. Charlotte, a young student from a modest background, arrives at an elite university in Pennsylvania only to be crushed by reality. Tom Wolfe takes us by the hand – and shows us that, in the end, people are all just out for themselves.

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The Week on Verfassungsblog

summarised by EVA MARIA BREDLER

Pair “The early bird catches the worm” with “Money is to be made” – and you land in Germany’s political week 11. The early (or late, depending on your perspective) Bundestag seems to be catching a huge financial worm, but – good things come to those who wait – should it really be moving this fast? This is the question the Federal Constitutional Court had to decide while parliament was debating, and it now has dismissed several challenges against the extraordinary parliamentary session. JOHANNES GALLON (GER) uses this as an opportunity for a constitutional critique, arguing that it should not be the FCC’s role to decide the timing of an ongoing legislative process.

HENNING TAPPE (GER) looks at the financial constitutional aspects of the reform and warns about potential drafting errors in the constitutional text.

In any case, it doesn’t seem a bad idea for Europe to stop relying on the United States for its defence. In 1982, political scientist Hedley Bull called a European civilian power “a contradiction in terms”. HEIKO MEIERTÖNS (ENG) explains why Europe urgently needs to develop its own nuclear deterrent, entirely independent of the USA.

The FCC has not only dismissed applications related to the extraordinary sessions but also rejected the German party BSW’s election challenge as inadmissible. And the new electoral law itself has passed its first test, although not without criticism. EDOARDO D’ALFONSO MASARIÉ (GER) proposes an alternative that would personalise and territorialise the electoral system without abandoning proportional representation.

It is now almost certain that CDU/CSU and SPD will form a coalition. In a working paper that serves as the basis for the now-beginning coalition negotiations, the parties propose significant changes to asylum procedures, namely the principles by which courts determine relevant information. WINFRIED KLUTH (GER) explores what this means and why, from a rule-of-law perspective, the envisaged changes are not a good idea.

The Netherlands are also looking to tighten asylum laws, and thereby not only limiting access to justice. In late 2024, the Dutch government proposed the self-proclaimed “harshest asylum regime ever”, in the form of two laws. SOPHIE ADAMS and LYNN HILLARY (ENG) explain why – even if parts of the reform may be legal – the sum of these parts finds itself at odds with EU law.

Meanwhile, Denmark is facing legal action over laws that designate certain neighbourhoods as “ghettos” based on unemployment, migration, and crime rates. Advocate General Ćapeta concluded that Denmark’s “Ghetto Law” violates the Race and Ethnic Equality Directive. SILVIA STEININGER (ENG) explains how the Advocate General is using EU law to challenge the “othering” embedded within migration law.

The EU itself is adopting increasingly strict asylum and migration policies. At the end of last year, the European Commission justified stringent border policies by claiming migration is being misused as a tactic of hybrid warfare. GEORGIA STEFANOPOULOU (GER) is concerned on two fronts: both about asylum law and, more critically – about enforced disappearances, a crime against humanity.

The situation in the USA has been a cause for concern on more than two fronts, since day one of the Trump administration (at the latest). Trump is trying to eliminate the independence of regulatory agencies, with the “unitary executive theory” playing a key role. PETER M. SHANE (ENG) outlines the dangers of this theory, which overlooks how easily executive power can slip into autocracy.

VICTOR LOXEN (GER) examines the Trump administration’s actions as a “reign of bullshit” and questions whether US courts can still push back against the assault on institutions.

HANS PETTER GRAVER (ENG) adds a historical perspective to these analyses: Drawing lessons from the German judiciary in the 1930s, he calls for resistance from judges today, though he warns against equating the Trump administration with the Nazi dictatorship.

Last year, the Federal Administrative Court also addressed the political stance of the judiciary. In a much-anticipated ruling, the court confirmed that a member of the right-wing “III. Weg” party could be denied access to legal training. The reasoning of the judgment has now been published. ANDREAS NITSCHKE (GER) finds the reasoning plausible but identifies follow-up questions.

Fortunately, in Poland, the days of politicised prosecutors are largely behind. The new Polish government has promised justice for the victims and consequences for the prosecutors involved. A year later, the Open Dialogue Foundation analysed the nationwide audit of PPO cases. MARTIN MYCIELSKI (ENG) concludes that the reality is disappointing.

In Romania, the rule-of-law crisis seems to be deepening. After the annulment of the presidential elections in December 2024, the candidacy of the ultranationalist hardliner Georgescu was declared invalid this month in an effort to end the crisis. While some view the invalidation as a bold example of militant democracy and the rule of law, BOGDAN IANCU (ENG) shows that the situation is both simpler and more complex.

Last week, 80% of Italy’s judiciary went on strike in protest against the government’s proposal to reform judicial administration. Though not a radical reform, the aim behind it is to weaken judicial self-governance, as analysed by SIMONE BENVENUTI (ENG).

The Digital Services Act (DSA), however, was originally designed as a radical reform. One year after its introduction, many questions regarding its implementation remain open. There are significant concerns about the independence of some certified bodies for out-of-court dispute resolution, like the Appeals Centre Europe (ACE). LORENZO GRADONI und PIETRO ORTOLANI (ENG) examine whether ACE’s certification complies with the DSA’s independence requirements and what this means for the future of platform accountability in Europe.

India has also invested heavily in its data protection regulations. Despite legislative efforts spanning over a decade, AKRITI GAUR (ENG) finds that the current draft law does little to clarify India’s opaque stance on cross-border data flows and provides inadequate protection for citizens’ privacy.

The environment, too, is inadequately protected. That’s no news. The issue of meat production brings together interconnected environmental and health crises: climate change, biodiversity loss, deforestation, pandemics, food insecurity, unsustainable diets, and institutionalised animal suffering. The organisers and speakers of a conference at the Max Planck Institute for Foreign and International Public Law drafted a “Declaration on Transforming Global Meat Governance” which SASKIA STUCKI, ANDRÉ NOLLKAEMPER, CESARE P.R. ROMANO and ANNE PETERS (ENG) present.

Perhaps we’ve misunderstood the early bird, after all – it wasn’t about rushing, but about eating worms. Bon appétit!

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Take care and all the best!

Yours,

the Verfassungsblog Team

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