Germany's constitutional court has strengthened the eurosceptics

When the first headlines came out on Friday morning, it looked as if the German constitutional court had caved in. It decided to pass the case against Mario Draghi's "whatever-it-takes" bond-buying programme to the European Court of Justice. In doing so it seemed to have washed its hands of a fiendishly difficult case. It looked as though the president of the European Central Bank had been fully vindicated over his outright monetary transactions , the official name of his programme to save the euro.

But this interpretation is wrong. On Friday the German plaintiffs who brought the case were celebrating. It is not hard to see why. If you read past the first 15 pages of procedural jargon, you find the court concludes that OMT violates the German constitution. It accuses the ECB of making a power grab by extending its own mandate. It says the scheme endangers the underpinnings of the eurozone rescue programmes. Worse, it says OMT undermined deep principles of democracy. Were it to be used, it would deprive the German parliament of its fiscal sovereignty by forcing it to accept any losses the scheme generated. The ruling considers OMT to be debt monetisation, whereby a central bank prints money to finance sovereign debt. It is hard to think of any act short of a military coup that could violate so many important constitutional principles all at once.

I disagree with the ruling, as did two of the justices, who wanted the case dismissed. One of them angrily accused the court of overstepping its mandate. This was a fight from start to finish. The eurosceptics won.

What irks me is the you-deserve-what-you-get attitude. The ECB justified the scheme on the grounds that it would fix "broken transmission mechanisms" - central bankers' jargon for the links between monetary policy and the real economy. The problem was that however far the ECB lowered official interest rates, they would not filter through to company loans in southern Italy. The court said bluntly that it was in the nature of a debt crisis for transmission mechanisms to break; they were no matter for the central bank or monetary policy.

If you look back to all the previous German constitutional court cases on the euro, the answer was always a variant of "Yes, but". This ruling was the legal equivalent of "No, no, no" - with one important addition. The court is asking the ECJ to clarify important points of European law, including whether OMT is covered by the ECB's mandate; whether OMT needs to be capped; whether it violates the sovereignty of national parliaments; and whether it constitutes monetary financing of government debt.

Most commentators think the ECJ will side with the ECB. I am not sure. The ECJ, too, is hard to predict. It might not take the case; or it might take it and let it ferment. If the ECJ were to side with the ECB, we would end up with a "constitutional crisis", whereby German constitutional law directly contradicts EU law. The German court left no doubt that the Bundesbank and other German institutions were bound by the constitution. They also made clear they were not letting go of this case. The ruling gives the distinct impression that the judges are referring the case not up to a higher court but down to a lower court.

What happens now? The OMT is a phantom programme. It was never triggered. Then again, it may have already served its purpose: fooling investors into believing there is a backstop when there is not. The scheme was never formalised into European law. There is no OMT directive, nor will there be.

So what would happen if the ECB wanted to trigger the scheme? Following this ruling, I am not sure the Bundesbank could participate. That would be an inconvenience, no more. I would also expect, though with less certainty, that the German government would torpedo OMT through a technical lever. The scheme requires potential beneficiaries first to apply for a conditional credit line from the European Stability Mechanism. This is where the governments come in: they have to approve any ESM programme by unanimity.

What if the government and parliament voted in favour of a credit line? You could count on an immediate legal challenge at the constitutional court. This is the point when the ruling will matter. The court would then either eat its words or trigger a crisis. It will not refer another case to the ECJ.

All this leads me to conclude that the immediate impact of the ruling is not so much that this case is suspended but that the OMT is suspended. I cannot see how it could be triggered in practice given such explicit condemnation by Germany's highest court. I also expect it to strengthen the political position of eurosceptics in Germany and beyond. Watch out for Alternative fur Deutschland, the new anti-euro party. As it prepares to campaign for May's European parliament elections, it can claim the constitutional court is on its side.

At the very best, the ruling will make life even less certain.

Ακολουθήστε το Euro2day.gr στο Google News!Παρακολουθήστε τις εξελίξεις με την υπογραφη εγκυρότητας του Euro2day.gr

FOLLOW USΑκολουθήστε τη σελίδα του Euro2day.gr στο Linkedin

munchau@eurointelligence.com

© The Financial Times Limited 2014. All rights reserved.
FT and Financial Times are trademarks of the Financial Times Ltd.
Not to be redistributed, copied or modified in any way.
Euro2day.gr is solely responsible for providing this translation and the Financial Times Limited does not accept any liability for the accuracy or quality of the translation