Tuesday, June 21, 2016
Another 'yes but...' from Karlsruhe
The German Constitutional Court just released its final verdict in the case against the ECB’s OMT programme. The Court rejects the complaint but does only give half-green light for OMT. < Summary Line Germany’s Constitutional Court just released its ruling in the case against the ECB’s OMT programme. The Court officially rejects the complaint against OMT. However, the details of the Court’s ruling suggest that rejecting a complaint does not necessarily mean that the Court embraces OMT. Although we are no legal experts, the bottom line of the Court’s ruling seem to be: the Court grudgingly acknowledges the ECB’s independence on monetary policy matters and that European legal matters do not fall into the responsibility of the German Court. Moreover, the Bundesbank can only participate in the OMT under certain conditions. Remember, the OMT programme has been the ECB’s strongest weapon during the peak times of the euro crisis and it is a programme which has never cost a single euro. The OMT has been the fundament under Mario Draghi’s famous “whatever it takes” words. It is the programme with which the ECB announced to buy government bonds of crisis-stressed countries under certain conditions, as e.g. that the country needs be in a bailout programme. The “whatever it takes” words combined with OMT were a game changer during the darkest times of the euro crisis, giving financial markets the impression that the ECB could be a last lender of resort for the Eurozone. Consequently, spreads between government bond yields narrowed again. But the legality of the programme has been challenged by 37,000 German plaintiffs who argue that OMT violates the EU’s prohibition on the “monetary financing” of governments. Last year, the German Court had asked the European Court of Justice for legal advice (which is different from delegating the entire case to the European level). The ECJ’s advice was clearly supportive for the ECB. With today’s final ruling, the German Constitutional Court confirms the ECJ’s ruling but also indirectly criticizes the ECJ for not having investigated deep enough whether ECB’s own assessment on need for OMT was justified. In its ruling, the German Court states that it took the ECB’s own assessment for granted. While the German Court has rejected the case against the OMT, it still has put conditions on the Bundesbank’s participation. Namely: bond purchases should be limited in volume and should not be announced beforehand. Moreover, purchased bonds should only held until maturity in exceptional cases. The entire case has not only brought German opposition against the ECB’s non-standard monetary policy measures into court rooms, it has also been a nice illustration of the ongoing struggle and difficulties in Europe and the Eurozone to delegate powers and responsibility from the national to the European level. Similar to the British referendum in two days from now, the German Court’s ruling had the potential to shake the European Union or at least the monetary union to its very foundations. Fortunately, it did not. This ruling on a programme which has never ever been used gives the ECB enough room and backing to continue with QE and to stand ready to eventually fight any emergencies on financial markets in case of a Brexit-vote on Friday morning. At the same time, however, the ruling was not convincing or strict enough that it will stop German opposition against current ECB policies or prevent new lawsuits against the ECB. It was a typical “yes, but…” ruling from Karlsruhe. Some could even be tempted to call the Court a sore loser who is still struggling to find a balance between European and national interests and powers. Clearly not the only one in Europe currently.