Follow the Money

It has been five years since I and many others marched through the European city centres, choking back tears of Euro-patriot emotion, waving the blue flag with the circle of yellow stars, singing out loudly Beethoven’s ode to joy: The Pulse of Europe throbbed powerfully in the veins of the transnational urban elites – that was the message these demonstrations were meant to send, a sign against Brexit, against Trump, against the AfD, against Marine Le Pen, against the appearance that the Eurosceptics own the future.

The scene of the Pulse of Europe demos in Berlin at the time was Bebel-Platz, a paved area between the opera house and the law faculty of Humboldt University in the middle of the crypto-Prussian centre of the German capital. Directly opposite, on the other side of Unter den Linden, is the main building of the Humboldt University. I attended a fascinating conference there today and yesterday. One of the impressions I received there is this: it is time to put the word “Eurosceptic” as a concept of interior politics to rest. It no longer denotes anything meaningful, suggests continuities where there are none, and lends itself to delegitimising and killing off much-needed constitutional controversies.

“Follow the Money” was the title of the conference, organised by Ruth Weber and the DYNAMINT Graduate School, and it dealt with the unimaginable amounts of money that the European Union is preparing to spread about from a legal, economic and political perspective. The COVID pandemic, climate change, the war in Ukraine – all these crises of frightening proportions have to be dealt with, after a decade of continuous ad hoc crisis management which had left hardly a stone unturned in EU budgetary and financial constitutional law. The old EU, financially dependent on the member states and on a budget to maintain itself and its transfer funds that has to be approved every seven years by the Council and Parliament, can still be spotted in today’s EU like the temple of Athene in the cathedral of Syracuse. But its shape, its architecture, its functioning has changed radically.

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The historian and philosopher Luuk van Middelaar (Leiden) described this change in three steps: From “programme spending” of the old, depoliticised Structural and Cohesion Funds Union, to “emergency spending” of the crisis decade with its rescue umbrellas stitched together outside the EU framework and its democratically dubious and conflict-prone conditionality regimes, and finally to “strategic spending” in the cumulative mega-crisis of the present, in which the Union no longer reacts, but governs and shapes the green and digital future with a staggering two trillion euros, in harmony with the national governments, thus fulfilling the French longing for a sovereign whose sublime abundance of power promises security in these uncertain times, no matter how scary this may be to the pusillanimous German bourgeois worried about his tax penny.

What has remained the same in the meantime, however, are the European Treaties. Not a single letter of the constitution of the European Union has changed during this entire upheaval.

Alberto de Gregorio Merino (Legal Service of the Council) was entirely unfazed by this. The Treaties, he said, are a “living document” open to interpretation, the Union is always under construction and never finished like the Sagrada Familia in Barcelona with its countless towers, and even the sarcastic questions of several German professors of European law about the legal basis on which the alleged COVID reconstruction programme is now being extended to free Europe from its dependence on Russian oil and gas, did not manage to throw him off his stride. There are plenty of hooks in the TFEU on which a competent EU lawyer can hang such a package.

Some legal scholars, however, were less at ease. According to Claudia Wutscher (WU Vienna), the sheer size of the Next Generation EU programme makes it questionable in terms of both European and constitutional law. Päivi Leino-Sandberg (Helsinki) cited David Dyzenhaus’ image of a “grey hole” where legal bindings still exist but are too insubstantial to effectively prevent the government from simply doing what it thinks is useful. The claim that this is all a one-off measure, tailored to the specific emergency, with no lasting impact on the constitutional order, is implausible, as seen in the REPowerEU programme and the reallocation of unspent COVID reconstruction funds for armament in the conflict with Russia. The exception is becoming the new normality, without democratic debate and without parliamentary control. This is no way to build a fiscal union.

What to do? Claire Mongouachon (Paris Nanterre) referred to the 2017 proposal by Stéphanie Hennette, Thomas Piketty, Guillaume Sacriste and Antoine Vauchez to democratise the Eurozone and equip it with a Parliamentary Assembly of national and EP deputies. Frank Schorkopf (Göttingen) recalled the debates of the 1970s on universal suffrage at the European elections and the power of the purse for the European Parliament, which could now quickly gain new relevance. Meanwhile, the European Parliament has called for a convention to reform the EU Treaty, and the French Council Presidency has promised a debate on the subject, although in many member states the unwillingness to deal with treaty reform still seems almost insurmountable.

Nevertheless. It would not be the first time that a government newly endowed with great power needs to be made to understand the necessity of the corresponding self-commitment to exercise its power in a reliable, controlled and well justified manner, in a word: in accordance with the rule of law. The empowerment came about because in the current major crisis the goals are hardly controversial. Who would be against reconstruction after the pandemic? But first, this does not mean that the means are equally self-evident: Governing by financial incentives is, as we know in the Federal Republic of Germany, a very efficient technique of exercising power and as such can cause major constitutional issues. And secondly, more normal times will come again and with them goals that are more contested. Then there will be a need for procedures and institutions to conduct and decide this dispute and to prioritise these goals in a collectively binding way. This is all highly political. This requires an informed, critical public.

We lawyers have a job to do here. Especially in Germany, we are used to addressing our input to the Rechtsstaat itself, in the sense of: this works and is legally unproblematic, this is not. However, we have noticed that the government seems to be less and less interested in, if not downright annoyed by, their supposed legal know-it-allism (of which, it must be admitted, legal academia has not always been entirely innocent, see here and here). Legal scholarship, however, has always been much more than just a kind of outsourced government legal service department. It has the expertise and the independence, secured by academic freedom, to contrast factual government action with its normative legal framework. If it observes an unexplained gap between the new programmes and their alleged legal basis, then it should definitely make this observation public with all due emphasis. Particularly when and precisely because the government seems to be disinterested in this information.

And yes, this is definitely and emphatically to be understood as an invitation to write for Verfassungsblog.

As far as the EU is concerned, until a few years ago such criticism would have easily fallen under the suspicion of being motivated by “Euroscepticism”. I think we should put that behind us. The conflict that was at stake has been decided. The EU has prevailed. It no longer needs to be protected from criticism. On the contrary.

Especially since what was it once denoted hardly exists any more. If Euroscepticism means seeing one’s own nation as something that loses something through EU membership that it would have without, then the option of leaving the EU is necessarily implied. But nobody wants that any more, not even Marine Le Pen, and for good reason. The Brussels-bashing that she and all authoritarian populists so willingly and successfully engage in is above all functionally motivated and is by no means aimed at disintegration, let alone exit, but on the contrary at using their membership as efficiently as possible for their own ends. Perhaps, British Eurosceptics were always the only ones who took their own Euroscepticism truly seriously. Well, they are out now anyway.

The week on Verfassungsblog

… is summarized by PAULINE SPATZ:

Despite Poland’s meek assurances on improving its rule-of-law situation, the European Commission decided on June 1, 2022, to approve Poland’s 36 billion euro recovery plan. The content of the decision, bad as it may be, is not even the worst of it, finds WOJCIECH SADURSKI. Even worse is the timing of the decision, as it means the Commission is giving up a crucial bargaining chip against Poland for no good reason.

The spectre of a motion of censure is looming over the von der Leyen Commission. This rather extraordinary, perhaps desperate, measure appears unlikely to attain the required number of signatures to be tabled. ALBERTO ALEMANNO argues that nonetheless, this initiative deserves some scrutiny and perhaps even some praise.

A few weeks ago, the Portuguese Constitutional Court triggered a heated political debate on the need for a constitutional amendment to grant criminal investigation authorities access to metadata on personal communications. For TERESA VIOLANTE, this conflict is at a larger critical juncture where EU and national constitutional law, the ECJ, the national constitutional court and the ordinary courts intersect.

By the end of 2022, the German promulgation of the law on paper is to end. However, the planned law is subject to a parallel constitutional amendment, which still has to be worked out in the Ministry of the Interior, announced Justice Minister Marco Buschmann. SIMON GAUSEWEG sees no need for a constitutional amendment; rather, he sees the government bill as a missed opportunity to actually digitize the promulgation of laws.

General Staff Officer Anastasia Biefang received a disciplinary reprimand because of her Tinder profile, and the German Federal Administrative Court decided on May 25, 2020, to uphold it. PATRICK HEINEMANN is interested in the question raised by the case of whether soldierly duties are categorically different from, for example, civil servant duties.

The recent decision of the German Federal Constitutional Court of April 7, 2022, on the significance of child rearing for social insurance contribution law brings small-scale improvements for the area of long-term care insurance. ANNE LENZE comments on the decision for us.

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The Free Hanseatic City of Bremen has called for the introduction of an excess profits tax with a motion for resolution in the Bundesrat – the preliminary culmination of a discussion that has been going on for some time. In view of the high constitutional hurdles, however, TILL VALENTIN MEICKMANN doubts whether this measure would even be constitutional.

The German-Italian dispute over civil liability for German crimes during World War II could soon come to an end. Legislative Decree No. 36 of April 30, 2022, provides, among other things, for the Italian government to pay compensation to the victims itself. A solution that would not be satisfactory even if Germany decides to contribute to these compensations in the future, finds PAOLO CAROLI.

On May 18, 2022, the Cour d’appel de Paris upheld a criminal case brought against the cement company Lafarge SA for, among other things, aiding and abetting crimes against humanity and allegations of terrorist financing.  The French judiciary is holding the company accountable in a strong sense. CHARLOTTE SCHMITT-LEONARDY sees the case as a possible turning point in addressing the economics of war andcorporate criminal liability in international law.

That’s all for this week. Thanks for your attention, stay tuned and in as good spirits as you manage and please don’t forget to support our work on Steady!

All best,

Max Steinbeis