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Wednesday, February 12, 2014 1:45 AM

Rethinking "Paper Tiger"

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Last Friday, in "Paper Tiger" I expressed the viewpoint that the German constitutional court caved in to the ECB, then bowed down before the European Court of Justice in Luxembourg.

It's time to reconsider. Here are three good reasons:

  1. AfD, the German euroskeptic party was thrilled with the ruling
  2. The nannycrats are furious
  3. The monetarists scream paralysis

Anything that annoys the nannycrats and monetarists while pleasing the euroskeptics cannot possibly be all bad. Let's take a look at what others said about the ruling.

What German Court Ruling Means for the Euro

Here are a few snips from the Spiegel Online article What German Court Ruling Means for the Euro
Germany's Constitutional Court ruling last Friday marks a significant escalation in efforts to rein in the European Central Bank. The ruling's message? Either the European Court of Justice has to stop bond purchases or German justices will.

Last Friday, when six justices on Germany's Constitutional Court cast doubt on European efforts to save the euro, the man who initiated the case was sitting obliviously at his desk. It was only when his secretary burst excitedly into his office that Peter Gauweiler understood that his case had created legal history.

Gauweiler, a member of German parliament who also has a legal firm located in Munich, managed to convince a majority of justices on the court's second senate that the ECB's program to save the European common currency is contrary to European law. The court referred the case onward to the European Court of Justice in Luxembourg, a first for the Karlsruhe-based German court. "Karlsruhe has shown ECB President Mario Draghi what a bazooka really is," Gauweiler crowed.

Gauweiler is likely the only German parliamentarian for whom the ruling is cause for such elation. The case regarding the legality of ECB efforts to assist ailing euro-zone member states has been ongoing for more than a year -- and Friday's move to refer the issue onward to Luxembourg has triggered concern and impatience among politicians in Berlin and the rest of Europe.

Sending the case to Luxembourg only appears to be an act of European conviction at first glance. In truth, it is nothing less than a final reckoning with the crisis-management strategy pursued by the ECB. There can be no doubt about it: The Constitutional Court is threatening to cause trouble.

In a worst-case scenario, the Constitutional Court could forbid Berlin from contributing to efforts to save the euro or even force Germany to leave the currency zone entirely.

Clemens Furst, head of the Center for European Economic Research, calls last Friday's ruling a "thunderbolt." The German court, he said, has made it clear that it finds OMT to be extremely problematic. "It is a clear signal," he says.

Hans-Werner Sinn, the euro-skeptic head of the Munich-based Ifo Institute, believes that the German court's position "will not remain without consequences for ECB monetary policies." Furthermore, the ruling "will strengthen the position of euro critics and the general skepticism Germans have of the ECB."

Politicians in Berlin, by contrast, are furious. "Why not just go ahead and continually review everything the government does?" snapped one conservative. He says the referral to the European court could slow euro-zone policy for the foreseeable future.

Of course, members of AfD are extremely pleased with last Friday's ruling. "I am enormously satisfied with the decision," says party head Bernd Lucke. "Finally, a court has found that the ECB's bond-buying program is a clear violation of European law." He adds that the ruling provides "an important boost for the campaign."

It is also a clear indication that Germany's highest court is extremely skeptical of the ECB. Draghi's 2012 announcement that the ECB would embark on unlimited sovereign bond purchases from ailing euro-zone member states, the court found, is incompatible with European law. The ruling notes that OMT "exceeds the mandate" of the ECB and "encroaches on the responsibility of the member states for economic policy." Furthermore, it finds that the purchasing of sovereign bonds on secondary markets represents a "circumvention" of the prohibition against direct state financing.

The finding of the German Constitutional Court, say European central bankers, is even more critical than the skepticism voiced internally. The justices, it is felt, would likely forbid instruments such as Quantitative Easing as well.

They could be right. The Karlsruhe justices feel stronger than ever. For the first time, they dared to do what they had been threatening to do for years: They branded a European decision as ultra vires and thus found it to be inconsistent with the German constitution. Sending this finding to a European court has far-reaching implications for the court's reputation and authority: "The ruling will now be translated into the 23 other official EU languages and sent to all EU member states," one Constitutional Court insider noted with gratification.
ECB Paralysed by German Court Decision as Deflation Threatens

Ambrose Evans-Pritchart at the Telegraph claims ECB Paralysed by German Court Decision as Deflation Threatens
Last week’s ‘thunderbolt’ ruling on eurozone rescue policies by Germany’s top court marks a serious escalation of Europe’s governance crisis and may ultimately force Germany to withdraw from the euro, the country’s most influential magazine has warned.

A sweeping report by Der Spiegel said the court ruling amounts to a full-blown showdown between Germany and the European Central Bank over the methods to shore up southern Europe's debt markets.

“It is nothing less than a final reckoning with the crisis-management strategy pursued by the ECB. The German justices insist that the German constitution sets limits on the ECB’s crisis strategy. In a worst-case scenario, the Court could forbid Berlin from contributing to efforts to save the euro or even force Germany to leave the currency zone entirely,” it said.

The warning came as market analysts began to see the darker implications of the ruling, which was initially seen as a green light for the ECB's bond operations.

Marcel Fratzscher, head of the DIW Institute, said the ruling greatly constrains the ECB. "A central bank must have unlimited scope for conducting monetary policy. If this prerogative is limited, it undermines credibility. The constitutional court has created fresh uncertainty with this decision," he said.

The German court in Karlsruhe said there were grounds for concluding that the ECB’s back-stop plan for Italy and Spain - known as the OMT - breaches the ECB’s mandate and violates the treaty prohibition on “monetary financing” of budgets. It did not address QE as such, but that distinction is becoming irrelevant in Germany.

The German court said the ECB’s actions are probably “Ultra Vires”. If so, German institutions such as the Bundesbank are prohibited from taking part.

The ECB can in theory carry out rescue policies without the Bundesbank. Whether this would have any market credibility in a crisis is doubtful.
Germany’s Constitutional Court has Strengthened the Eurosceptics

Financial Times writer Wolfgang Münchau says 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.

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.

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 für 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.
You Deserve What You Get

Those looking for a bonus 4th reason to be pleased with this ruling, need only note that Münchau seems furious, complaining "What irks me is the you-deserve-what-you-get attitude."

I nearly always find Wolfgang Münchau's analysis interesting. However, I seldom agree with his conclusions about what is best.

In this case, the nannycrats seriously deserve to be punished for their arrogance, comeuppance, and general disregard for laws of all sorts simply because it suits their purpose.

Half a Tiger

My initial reaction was the court punted. I now wonder if they did so on purpose. Regardless, half a tiger is better than a kitten or an ostrich. The court could have ruled OMT was valid or simply passed on the case.

The euroskeptics are emboldened and I sense an outright massacre of nannycrats in the May parliamentary elections.

Things are looking up, unless you are a nannycrat.

Mike "Mish" Shedlock

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