Germany’s top court on Wednesday rejected calls to block ratification of the European Stability Mechanism, triggering a modest sigh of relief from financial markets and clearing the way for implementation of an important tool in Europe’s effort to contain its three-year-old debt crisis.What the courts do, both in Europe and the USA, is to come up with language to circumvent the clear language of black letter law. Consider the following text:
In a decision read from the bench of the Federal Constitutional Court in Karlsruhe, the red-robed judges rejected six requests for an injunction to prevent Germany’s president from signing the treaty establishing the 500 billion euro ($643.7 billion) permanent rescue fund.
Reuters Judges at Germany’s Federal Constitutional Court in Karlsruhe.
The decision eliminates the threat that Germany, the euro zone’s largest economy and paymaster, would be blocked from participating, which would have effectively scuppered the fund and potentially set off a financial panic.
a) Article 136 (3) TFEU does not change the orientation of the monetary union, nor does it remove the prohibition contained in Article 125 TFEU of assuming the liabilities of other Member States; it merely contains a clarification. The measures of stability support of the Member States are not measures of monetary policy for which, under Article 3 (1) point (c) TFEU, the European Union would be competent. The granting of financial assistance is a measure of economic policy, for which the Member States are competent.
In other words, the prohibited action is legal, not because the prohibition has been removed by court fiat, but because the prohibited action is supposed to not be the action everyone knows it to be. In this case, mere assistance is being granted, which is legal, instead of liability being assumed. Of course, the assistance being granted is the effective assumption of the liability.
This is why Tocqueville was correct to point out that it was America's populace, and not her laws, that made America great. But America's populace has changed dramatically, and that is why, as Tocqueville correctly predicted is no longer great.