National Constitutional Jurisprudence in a Post-National Europe: The ESM Ruling of the German Federal Constitutional Court and the Disavowal of Conflict


  • Henning Deters

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    • Political scientist and doctoral researcher at the TranState Research Centre 597, Bremen, within the project ‘Trade liberalisation and social regulation in transnational structures.’ His main research interests are European law and politics, European environmental politics, constitutional politics and policy analysis. The work on this contribution was financed by the Deutsche Forschungsgemeinschaft (DFG) and prepared in the context of the TranState Research Centre. The author would like to express his thanks for the helpful comments he has received from Christian Joerges, Josef Falke and Thorsten Hüller, as well as for the excellent research assistance provided by Lennart Lutz. The usual disclaimer applies.


In its pending decision on the constitutionality of the European Stability Mechanism and Fiscal Compact, the German Federal Constitutional Court (FCC) has recently ruled on several applications for temporary injunctions against the transposition of these instruments. The problem of democratic self-determination under the constraints of monetary integration has been a main concern in the ruling. Yet, the democracy-safeguards the FCC has prescribed are parochial in not considering their impact on other EU Member States, and the Court's view of autonomy is skewed towards the issue of spending. Both concepts are at odds with the current level of transnational interdependence, which the FCC as relay to ‘integration by stealth’ has facilitated during two decades of EU-jurisprudence. Constitutional jurisdiction should acknowledge its role in this state of affairs and fortify its effort in building judicial networks of deliberative exchange to overcome outworn parochialisms.