Germany is ceding more and more power to the EU. But how far is that compatible with the German constitution? Now senior politicians are proposing a referendum to change Germany's Basic Law.
The constitutional objections are coming with increasing frequency. Every law that parliament passes in connection with the European debt crisis is met with a constitutional challenge from someone, and the court usually finds, at least partly, in favor of the complainant.
This month, the court ruled that the government must consult more with parliament over the euro crisis and criticized the government's inadequate information.
And last Friday the court issued a new kind of warning. A spokesman said that the court would ask the president not to sign two laws on the euro rescue fund which were due to be passed by parliament this coming Friday.
The court said it needed more time to consider the new European Stability Mechanism (ESM) and the EU fiscal pact that goes with it. President Joachim Gauck was quick to declare that he would follow the judges' request.
The constitutional court is insisting that parliament gets to decide
Parliamentary control at risk
What lies behind all this is not a lurking euroskepticism on the part of Germany's most senior judges - or even, as often rumored, a rivalry with the European Court in Strasbourg. When the judges speak about the matter, they always emphasize how favorably the German constitution, adopted in 1949, regards European integration. The first sentence of the preamble talks about the desire "to serve the peace of the world in a unified Europe."
But at the same time, a basic theme of the constitution is the principle of the supremacy of parliament - and that's what the court sees at risk in the measures being taken to deal with the crisis.
Originally, the European currency union was supposed to come together with a new EU constitution. The fact that this never came about has turned out to be a real problem. German Chancellor Angela Merkel has been calling for some time for further steps to be taken towards a greater political union, in order to give the common currency a more stable foundation.
The fiscal pact, which requires EU members to adopt a new budgetary discipline, is clearly seen by the German government as a step in this direction. All the same, the pact could be seen as removing the national parliament's right to decide its country's budget, without replacing it with an equivalent parliamentary control at EU level.
Referendum on a new constitution
It was in order to deal with this issue that German Finance Minister Wolfgang Schäuble proposed at the weekend that the Germans would have to vote on a new constitution - and they'd have to do so sooner rather than later. If authority is increasingly to be handed over to Brussels, he said, there will come a point when Germany simply reaches the limits of its constitution.
Both Schäuble, left, and Steinbrück agree about a referendum
He called for the EU institutions to be completely reconstructed and to include an elected president. A few months ago, he said, he thought that a referendum could wait for another five years, but now, he believes "it will come more quickly than that."
Schäuble's predecessor, Peer Steinbrück of the opposition Social Democratic Party, agreed with him. He too thought there would have to be a referendum in the next two years. "Anyone who has been listening to the judges of the constitutional court will know that there isn't any alternative," he said.
Another senior Social Democrat, Kurt Beck, premier of the state of Rhineland-Palatinate, also says that this is the right way to go. But he warns that a referendum would have to be prepared "very thoroughly," since it might otherwise lead to "an anti-European mood."
Fear of euroskeptics
This may be the reason for the reluctance of the liberal Free Democrats, junior partners in the government coalition. Their General Secretary Patrick Döring said, "We shouldn't be discussing new visions in this time of crisis; we should rather be stabilizing our currency." His party may be worried about the plans of the so-called Free Voters to stand on a euroskeptic platform at the next general election in 2013.
Merkel also distanced herself cautiously from Schäuble's proposal. Her spokesman Steffen Seibert said, "These are steps for tomorrow or the day after tomorrow - actually rather the day after tomorrow - and they're not for decision now."
Even so, Seibert has hinted that the limits of the constitution were already causing problems for the government. He said the government wanted to get a two-thirds majority in parliament for the ESM rescue fund, but so far it had only said that this would be necessary for the fiscal pact.
But Seibert argued, as had the parliament's president Norbert Lammert a few days earlier, that this would avoid any constitutional risk. He failed to say precisely which paragraph of the constitution he saw as giving rise to the risk, but there is clearly the impression that the government knows it's skating on ever thinner ice.
Author: Peter Stützle / mll
Editor: Ben Knight