FEDERAL CONSTITUTIONAL COURT

- 2 BvR 547/21 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint

the Federal Constitutional Court – Second Senate –

with the participation of Justices

Vice-President König,

Huber,

Hermanns,

Müller,

Kessal-Wulf,

Maidowski,

Langenfeld,

Wallrabenstein

held on 15 April 2021:

1. 1.The application for a preliminary injunction is rejected.

2. 2.The preliminary injunction of 26 March 2021 is no longer applicable.

Reasons:

A.

[…]

[Excerpt from Press Release No 29/2021 of 21 April 2021

At the special meeting of the European Council that took place from 17-21 July 2020 in the midst of the COVID-19 pandemic, the heads of state and government of the EU Member States agreed on the multiannual financial framework for 2021-2027 and the temporary recovery package “Next Generation EU” (NGEU). This instrument aims to counteract and mitigate the severe economic and social damage caused by the pandemic in the Member States. The Council Decision of 14 December 2020 on the system of own resources (hereinafter: 2020 Own Resources Decision) lays down rules on the financing of these measures. In the 2020 Own Resources Decision, the European Commission is authorised – for the sole purpose of addressing the consequences of the COVID-19 pandemic – to borrow up to EUR 750 billion in 2018 prices on capital markets on behalf of the European Union. The Decision only enters into force upon approval by all Member States. On 25 March 2021, the German Bundestag adopted the draft act ratifying the EU Own Resources Decision, and the Bundesrat gave its consent on 26 March 2021.

The applicants essentially claim that the domestic Act Ratifying the EU Own Resources Decision (Eigenmittelbeschluss-Ratifizierungsgesetz – ERatG) violates their rights under Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) and Art. 79(3) of the Basic Law (Grundgesetz – GG).

End of excerpt ]

[…]

B.

In an order dated 26 March 2021, the Second Senate of the Federal Constitutional Court ordered that the Act Ratifying the EU Own Resources Decision was not to be certified by the Federal President until the Court rendered its decision on the application for a preliminary injunction.

C.

Measured against the standards of § 32 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) (see I. below), the application for a preliminary injunction against the German act of approval to the 2020 Own Resources Decision of the Council of the European Union is unsuccessful (see II. below).

I.

Pursuant to § 32(1) BVerfGG, the Federal Constitutional Court may provisionally decide a matter by way of a preliminary injunction if this is urgently required to avert severe disadvantage, prevent imminent violence or for other important reasons in the interest of the common good. In assessing whether the requirements of § 32 BVerfGG for a preliminary injunction are met, the Court applies a strict standard; in this assessment, the reasons submitted for the unconstitutionality of the challenged measure are not to be taken into account, unless the application made in the principal proceedings is inadmissible from the outset or manifestly unfounded (see 1. below). If the application is directed against the act of approval to an international treaty and a violation of the legal interests protected by Art. 79(3) GG is at issue, a summary examination of the legal situation is required (see 2. below). If, in the case of an application based on § 32 BVerfGG that is neither inadmissible from the outset nor manifestly unfounded in the principal proceedings, the outcome of such an assessment is open, then, in a weighing of the consequences, the disadvantages of issuing the injunction must be weighed against the disadvantages of not issuing it (see 3. below).

1. Pursuant to § 32(1) BVerfGG, the Federal Constitutional Court may provisionally decide a matter by way of a preliminary injunction if this is urgently required to avert severe disadvantage, prevent imminent violence or for other important reasons in the interest of the common good.

a) In assessing whether the requirements of § 32(1) BVerfGG are met, a strict standard generally applies, given the potentially far-reaching consequences of a preliminary injunction (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 55, 1 <3>; 82, 310 <312>; 94, 166 <216 f.>; 104, 23 <27>; 106, 51 <58>; 143, 65 <87 para. 58>). This is especially true if the suspension of a law is sought (cf. BVerfGE 55, 1 <3>; 82, 310 <312>; 94, 166 <216 f.>; 104, 23 <27>; 106, 51 <58>; 121, 1 <17 f.>; 122, 342 <361>; 131, 47 <61>; 132, 195 <232>; 140, 99 <106>; established case-law). The Federal Constitutional Court must exercise the utmost restraint in using its power to suspend a law or even to stay the entry into force of a law, as such action constitutes a significant encroachment on the original competence of the legislator (cf. BVerfGE 131, 47 <61>; 140, 99 <106 f.>). As a general rule, the reasons for issuing a preliminary injunction must already be of such weight that they render the issuing indispensable, yet where the suspension of a law or the stay of its entry into force is sought, the underlying reasons must possess even greater weight (cf. BVerfGE 104, 23 <27 f.>; 117, 126 <135>; 122, 342 <361 f.>; established case-law). In this respect, it makes the decisive difference when the disadvantages are irreversible or very difficult to reverse (cf. BVerfGE 91, 70 <76 f.>; 118, 111 <123>; 140, 211 <219 para. 13>; established case-law), as this allows the interest in suspension to prevail. This standard is even stricter when the measures in question have implications for international law or for foreign policy (cf. BVerfGE 35, 193 <196 f.>; 83, 162 <171 f.>; 88, 173 <179>; 89, 38 <43>; 108, 34 <41>; 118, 111 <122>; 125, 385 <393>; 126, 158 <167>; 129, 284 < 298>; 132, 195 <232 para. 86>; 143, 65 <87 para. 34>).

b) When the Court decides on whether to issue a preliminary injunction, the reasons submitted for the unconstitutionality of the challenged measure are not to be taken into account, unless the declaration sought, or the application made, in the principal proceedings is inadmissible from the outset or manifestly unfounded (cf. BVerfGE 89, 38 <44>; 103, 41 <42>; 118, 111 <122>; 143, 65 <87 para. 35>; established case-law).

2. If an act of approval to an international treaty is challenged in the principal proceedings, it may be appropriate not just to weigh the consequences, but already to carry out a summary examination during the course of the [preliminary] proceedings pursuant to § 32(1) BVerfGG to establish whether, in view of the reasons submitted for the unconstitutionality of the challenged act of approval to the treaty, it is highly likely that the Federal Constitutional Court will declare the act of approval unconstitutional (cf. BVerfGE 35, 193 <196 f.>; 132, 195 <233 para. 88>); 143, 65 <87 f. para. 36>). On the one hand, this approach ensures that the Federal Republic of Germany does not take on obligations under international law that are incompatible with the Basic Law. On the other hand, it serves to prevent a situation where, due to the denial of preliminary legal protection, a potential violation of rights cannot be reversed, i.e. a situation where the decision in the principal proceedings would be too late, as is typically the case once the instrument of ratification of an international treaty has been deposited (cf. BVerfGE 46, 160 <164>; 111, 147 <153>; 132, 195 <233 para. 88>; 143, 65 <87 f. para. 36>).

A summary examination is necessary in particular if a violation of the legal interests protected by Art. 79(3) GG is at issue. In such a scenario, it is the duty of the Federal Constitutional Court to protect the identity of the Constitution (cf. BVerfGE 132, 195 <233 para. 88>). If the summary examination in the preliminary injunction proceedings reveals a high probability of an alleged violation of Art. 79(3) GG, the failure to grant legal protection would constitute a severe disadvantage for the common good within the meaning of § 32(1) BVerfGG (cf. BVerfGE 111, 147 <153>; 132, 195 <233 para. 88>). A summary examination may be dispensed with in such cases only if suitable safeguards are in place that make it possible to rule out encroachments on Germany’s constitutional identity (cf. BVerfGE 143, 65 <93 para. 50, and 98 ff. para. 66 ff.>).

The same standards apply in respect of the Act Ratifying the EU Own Resources Decision – the very name of which approximates it to an act of approval to an international treaty – for which Art. 311(3) of the Treaty on the Functioning of the European Union (TFEU) requires ratification-like approval by the Member States in accordance with their respective constitutional requirements and for which the [German] legislator, in response to the Lisbon judgment (cf. BVerfGE 123, 267 <387, 434>), set out in § 3 of the Responsibility With Regard to European Integration Act (Integrationsverantwortungsgesetz – IntVG) that approval is to take the form of a law. In this case too, there is a danger that, with approval that is effective under EU law – specifically the certification and promulgation of the act of approval by the Federal President and the corresponding notification of the Secretary-General of the Council pursuant to Art. 12 of the 2020 Own Resources Decision – a violation of the legal interests protected by Art. 79(3) GG may occur which, notwithstanding the obligation of the European Union in Art. 4(2) of the Treaty on European Union (TEU) to respect the national identity of Member States (on the divergence between Art. 79(3) GG and Art. 4(2) TEU, cf. BVerfGE 134, 366 <386 f. para. 29>), can no longer easily be reversed.

A summary examination is not needed if what is at issue is the classification as ultra vires of an act of institutions, bodies, offices and agencies of the European Union. Should it emerge in the principal proceedings that such an act is ultra vires , it may be declared void by the Court of Justice of the European Union or declared inapplicable in Germany by the Federal Constitutional Court. In the latter case, the Federal Government, the Bundestag and the Bundesrat must counter such an act by suitable means (cf. BVerfGE 142, 123 <209 ff. para. 166 ff.>; 154, 17 <88 ff. para. 107 ff., 150 para. 231>; Federal Constitutional Court, Judgment of the Second Senate of 2 March 2021 - 2 BvE 4/16 -, para. 78 ff.).

3. If the outcome of the principal proceedings cannot be foreseen, the Federal Constitutional Court must, in the context of a weighing of the consequences, in principle only weigh the disadvantages that would arise if the preliminary injunction were not issued but the constitutional complaint were then successful in the principal proceedings, against the disadvantages that would arise if the preliminary injunction sought were issued, but the applications in the principal proceedings were unsuccessful (cf. BVerfGE 105, 365 <371>; 106, 351 <355>; 108, 238 <246>; 125, 385 <393>; 126, 158 <168>; 129, 284 <298>; 132, 195 <232 f. para. 87>; 143, 65 <87 para. 35>; established case-law).

II.

On this basis, the admissible application for a preliminary injunction in the present case is unsuccessful. The constitutional complaint, the prospects of which the application seeks to protect, is, for the most part, neither inadmissible from the outset nor manifestly unfounded (see 1. below). On summary examination, it does not appear highly likely that the Act Ratifying the EU Own Resources Decision and the underlying 2020 Own Resources Decision violate Art. 79(3) GG (see 2. below). The required weighing of consequences, however, reveals that the disadvantages that would arise if the preliminary injunction were issued clearly weigh heavier than the disadvantages that might arise if the injunction were not issued, i.e. the application were rejected (see 3. below).

1. The application in the principal proceedings is, for the most part, neither inadmissible from the outset nor manifestly unfounded. The challenge is admissible in constitutional complaint proceedings (see a) below) and, apart from the assertion of a violation of Art. 23(1) third sentence GG (see b) below), the application demonstrates that the Act Ratifying the EU Own Resources Decision constitutes Bundestag and Bundesrat participation in a legal act of the European Union that could encroach upon the constitutional identity of the Basic Law protected under Art. 79(3) GG or represent a manifest and structurally significant exceeding of the integration agenda (Integrationsprogramm ) (see c) below). These challenges are not manifestly unfounded either (see d) below).

a) The act of approval to an international treaty can be challenged in constitutional complaint proceedings even before it enters into force provided that the legislative process has already been concluded except for certification of the act by the Federal President and its promulgation (cf. BVerfGE 1, 396 <411 ff.>; 24, 33 <53 f.>; 112, 363 <367>; 123, 267 <329>; 132, 195 <234 f. para. 92>; 134, 366 <391 para. 34 f.>; 142, 123 <177 para. 91>; 153, 74 <132 para. 94>). If constitutional challenges were not allowed at that point in time, Germany would risk assuming treaty obligations under international law that it could not fulfil without violating its Constitution. Then, constitutional complaints lodged at a later stage could no longer serve the purpose of resolving relevant constitutional issues in advance, thereby safeguarding the peaceful legal order (Rechtsfrieden ) and preventing discrepancies between binding obligations under international law and binding requirements under constitutional law (cf. BVerfGE 24, 33 <53 f.>; 123, 267 <329>). It is therefore in accordance with the principle of effective judicial (fundamental rights) protection and with established German state practice to allow an a priori review of future binding provisions at this point in the legislative process.

For the reasons set out above (cf. para. 71), the same standards also apply to the present case of the Act Ratifying the EU Own Resources Decision by virtue of Art. 311(3) TFEU.

b) Insofar as the applicants, with their constitutional complaint, seek a declaration that the Act Ratifying the EU Own Resources Decision is incompatible with Art. 23(1) third sentence GG and thus void on the grounds that the only legal basis stated by the underlying draft act is Art. 23(1) second sentence GG, however, the application is inadmissible from the outset and does not satisfy the requirements of § 23(1) second sentence, first half-sentence and § 92 BVerfGG.

The protection afforded by Article 38(1) first sentence GG also extends to ensuring that the requirements for an effective transfer of sovereign powers laid down in Art. 23(1) GG are observed; moreover, citizens in principle have a right to expect that sovereign powers be transferred only in the ways provided for by the Basic Law in Art. 23(1) second and third sentence and in Art. 79(2) GG (review of formal lawfulness of transfer, formelle Übertragungskontrolle ; cf. BVerfGE 153, 74 <152 para. 137>). The present case, however, is not about a transfer of sovereign powers. Neither the 2020 Own Resources Decision nor the Next Generation EU (NGEU) temporary recovery instrument, which is governed by Regulation (EU) 2020/2094 and which the Decision serves to finance, alters the integration agenda or the powers conferred upon the European Union within the meaning of Art. 5(1) first sentence and Art. 5(2) TEU.

The Act Ratifying the EU Own Resources Decision is based on the premise that the 2020 Own Resources Decision has its legal basis in Art. 311(3) TFEU and Art. 106a of the Treaty Establishing the European Atomic Energy Community (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 19/26821, p. 8). According to the explanatory memorandum to the Act, the European Commission is authorised, on the basis of Art. 122 TFEU, to borrow up to EUR 750 billion in 2018 prices on capital markets in order to finance the NGEU recovery instrument (cf. BTDrucks 19/26821, p. 1). By means of the Act Ratifying the EU Own Resources Decision, the Federal Republic of Germany gives its approval to the 2020 Own Resources Decision as required by Art. 311(3) third sentence TFEU, thereby creating the prerequisites for the entry into force of the 2020 Own Resources Decision as far as the Federal Republic of Germany is concerned (cf. BTDrucks 19/26821, p. 8). Consequently, the Act does not concern a transfer of sovereign powers to the European Union.

c) The applicants have also demonstrated the possibility that the 2020 Own Resources Decision might encroach upon the constitutional identity of the Basic Law and exceed the applicable EU integration agenda in a manifest and structurally significant manner; they argue that the Act Ratifying the EU Own Resources Decision therefore violates their rights under Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) in conjunction with Art. 79(3) GG.

aa) The right to democratic self-determination following from Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) and Art. 79(3) GG not only protects citizens from the substantial erosion of the German Bundestag ’s latitude to shape policy but also affords them a right to expect institutions, bodies, offices and agencies of the European Union to exercise only the competences transferred to them in accordance with Art. 23 GG (cf. BVerfGE 142, 123 <173 para. 80 ff.>; 146, 216 <251 para. 50>; 151, 202 <275 para. 92>). This right is violated where the transfer of sovereign powers or the implementation of the European integration agenda fails to respect the limits set by Art. 79(3) GG (cf. BVerfGE 123, 267 <353>; 126, 286 <302>; 133, 277 <316>; 134, 366 <382 para. 22, 384 ff. para. 27 ff.>; 140, 317 <336 ff. para. 40 ff.>; 142, 123 <203 para. 153>; 146, 216 <253 para. 54>; 151, 202 <275 para. 92>) and where institutions, bodies, offices and agencies of the European Union take measures which, even though they do not undermine democratic principles as such, are nevertheless not covered by the integration agenda (cf. BVerfGE 75, 223 <235, 242>; 89, 155 <188>; 123, 267 <353>; 126, 286 <302 ff.>; 134, 366 <382 ff. para. 23 ff.>; 142, 123 <203 para. 153>; 146, 216 <252 f. para. 52 f.>; 151, 202 <275 para. 92>).

(1) Citizens entitled to vote have a right to expect that the constitutional organs will ensure that the interests protected by Art. 79(3) GG are not affected by the transfer of sovereign powers to institutions, bodies, offices and agencies of the European Union. Art. 38(1) first sentence GG in conjunction with Art. 20(1) and (2) and Art. 79(3) GG not only protects them from the transfer of sovereign powers to the European Union beyond the areas open to integration, in violation of Art. 79(3) GG (in conjunction with Art. 23(1) third sentence GG), but also protects them against the implementation of acts of EU institutions, bodies, offices and agencies that have an equivalent effect and de facto amount to a transfer of competences that would be incompatible with the Basic Law (cf. BVerfGE 142, 123 <195 f. para. 139>). The Federal Constitutional Court determines whether this is the case in its review on the basis of constitutional identity (identity review – Identitätskontrolle ) (cf. BVerfGE 151, 202 <287 para.120, 301 f. para. 154 f.>; 153, 74 <133 para. 96>; 154, 17 <93 f. para. 114 f.>).

Acts of institutions, bodies, offices and agencies of the European Union may, in particular, reach the limits of the principles enshrined in Art. 20 GG, which are declared inviolable by Art. 79(3) GG (in conjunction with Art. 23(1) third sentence GG), if those acts substantially restrict the latitude of the Bundestag to shape policy (cf. BVerfGE 151, 202 <302 para. 155>; 154, 17 <93 f. para. 114 f.>). The budgetary powers of the Bundestag (cf. BVerfGE 123, 267 <359>; 129, 124 <177, 181>) and its overall budgetary responsibility are protected as indispensable elements of the constitutional principle of democracy by Art 38(1) first sentence, Art. 20(1) and (2) and Art. 79(3) GG (cf. BVerfGE 123, 267 <359>; 129, 124 <177>; 132, 195 <239 para. 106>; 135, 317 <399 f. para. 161>; 142, 123 <195 para. 138>; 146, 216 <253 f. para. 54>; 151, 202 <288 f. para. 123>; 154, 17 <87 para. 104>). It is for the Bundestag , as the constitutional organ directly accountable to the people, to take all essential decisions on revenue and expenditure; this prerogative forms part of the core of Art. 20(1) and (2) GG, which is beyond the reach of constitutional amendment (cf. BVerfGE 70, 324 <355 f.>; 79, 311 <195 para. 329>; 129, 124 <288 para. 177>; 142, 123 <195 para. 138>; 151, 202 <288 para. 123>; 154, 17 <87 para. 104>). It falls to the Bundestag to determine the overall financial burden imposed on citizens and to decide on essential expenditure of the state (cf. BVerfGE 123, 267<361>; 123, 267 <288 f. para. 123>).

No permanent mechanisms may be created under international treaties which would essentially entail an assumption of liability for decisions taken by other states, especially if they have potentially unforeseeable consequences. The Bundestag must individually approve every large-scale federal aid measure at international or EU level that is made in solidarity and affects public spending. Every single measure agreed upon at the supranational level which, by reason of its scale, may structurally affect Parliament’s budgetary powers, for example by providing guarantees the honouring of which may endanger budgetary autonomy or by participating in equivalent financial safeguarding systems, not only requires the consent of the Bundestag ; it must also be ensured that the Bundestag retains sufficient influence on how the funds provided will be used (cf. BVerfGE 132, 195 <241 para. 110>; 135, 317 <402 para. 165>; cf. also BVerfGE 129, 124 <180 f.>). The responsibility with regard to European integration (Integrationsverantwortung ; hereinafter: integration responsibility) borne by the Bundestag with regard to the transfer of powers to the European Union (cf. BVerfGE 123, 267 <356 ff.>) is reflected here in respect of measures of equivalent weight that affect the budget (cf. BVerfGE 129, 124 <181>; 132, 195 <241 para. 110>; 135, 317 <402 para. 165>). It would thus violate the principle of democracy if the type and level of public spending were, to a significant extent, determined at the supranational level, depriving the Bundestag of its decision-making prerogative (cf. BVerfGE 129, 124 <179>; 151, 202 <288 f. para. 123>; 154, 17 <87 para. 104>).

(2) The right to democratic self-determination also entitles voters to expect the constitutional organs to monitor adherence to the integration agenda, to refrain from participating in the adoption and implementation of measures that exceed the limits of the integration agenda and, in the event that institutions, bodies, offices and agencies of the European Union exceed their competences in a manifest and structurally significant manner, to take active steps to ensure conformity with, and respect for the limits of, the integration agenda. The Federal Constitutional Court conducts an ultra vires review to assess whether these standards are met (cf. BVerfGE 151, 202 <287 para. 140>; 153, 74 <133 para. 96>; 154, 17 <88 ff. para. 105 ff.>).

bb) In view of the foregoing, the submissions made by the applicants demonstrate that it appears at least possible that the 2020 Own Resources Decision, which was approved by means of the Act Ratifying the EU Own Resources Decision, infringes the overall budgetary responsibility of the Bundestag , encroaches upon the constitutional identity of the Basic Law and violates the applicants’ right to democratic self-determination derived from Art. 38(1) first sentence and Art. 20(1) and (2) in conjunction with Art. 79(3) GG.

The applicants contend that, under the rules on liability laid down in the 2020 Own Resources Decision, the European Commission has the right, subject to specified conditions, to make additional calls on the Member States to provide financing. They submit that this right is not limited to the amount of the distributed grants. This could increase the liability for EU debt assumed by the Federal Republic of Germany to an amount significantly exceeding Germany’s liability under the ESM, which is capped at EUR 190 billion of the subscribed capital. Over the entire repayment term from 2028 to 2058, they contend, Germany’s share of liability would be in the region of EUR 850 to EUR 1,000 billion ([...]). The extent of the liabilities for which calls could potentially be made on the federal budget would comprise the entire volume of EU debt minus the grants and loans attributable to Germany. The maximum liability risk for the federal budget would be about EUR 770 billion ([...]). According to the applicants, the legislator deciding on budgetary matters knows neither the time nor the extent of any call on resources by the European Commission and could neither calculate nor foresee it. There is no binding repayment schedule, and calls may be made on additional cash resources without the specific consent of the Member State concerned ([...]). This, they contend, amounts to direct access to the federal budget.

According to the applicants, giving up the Bundestag ’s budgetary autonomy by giving the European Commission discretion amounts to a complete relinquishment of responsibility for the period from 2028 onwards. For the period in which the repayments are to be made there is no multiannual financial framework yet into which these payment liabilities could be inserted. Accordingly, the applicants submit, the extent to which the federal budget could be burdened in the future with the repayment of incurred liabilities is subject to external determination by EU institutions. The applicants contend that the Bundestag is being subjected to an instrument affecting public finances which will “lead to unforeseeable budgetary burdens without prior constitutive approval by Parliament” (reference to BVerfGE 132, 195 <240 para. 108>).

The applicants submit that the overall guarantee volume resulting from the increased own resources ceilings, comprising a percentage of all Member States’ GNI, vastly overcollateralises the total borrowing, or liabilities, of EUR 750 billion; the increased ceilings will yield a guarantee volume of at least EUR 4,000 billion ([...]), thereby laying “the foundations for flexibility in any future contingencies”. The applicants contend that the adopted framework would allow the launch of additional COVID-19 relief programmes without the need to amend the 2020 Own Resources Decision. The Commission, they argue, will decide at its own discretion whether, when, in what amount and on whom it makes calls for resources. Should a Member State indicate that it is unable to honour a call to provide financing, liability for its share would have to be taken over by other Member States. According to the applicants, this would result in the real risk that the Bundestag would no longer be able to exercise its budgetary rights without being controlled by EU institutions. In these circumstances the Bundestag would no longer be “master of its own decisions”, the applicants claim.

In this regard, the applicants consider neither the maximum total annual amount of liabilities for the federal budget following from the 2020 Own Resources Decision and cited by the Bundestag and the Federal Government, nor how likely it is that the asserted liability risks will actually be realised in full. This, nevertheless, does not exclude from the outset at least the possibility that, as the applicants contend, the 2020 Own Resources Decision could undermine the Bundestag ’s budgetary autonomy to a degree that exceeds the limits set by Art. 79(3) GG.

cc) Moreover, the applicants sufficiently assert and substantiate that, and for what reasons, the 2020 Own Resources Decision is neither covered by Art. 311(3) TFEU nor compatible with Art. 125(1) TFEU and thereby amounts to an ultra vires act that violates the principle of conferral in a manifest and structurally significant manner. In their view, Art. 311(3) TFEU is not a legal basis that would be capable of authorising the arrangements set out in Art. 4 and Art. 5 of the 2020 Own Resources Decision. They rely on elements of legal scholarship in which borrowing has been or is regarded as inadmissible ([...]). According to the applicants, the 2020 Own Resources Decision breaks with the balanced budget rule, which was an essential precondition for the German approval of the Treaties of Maastricht and Lisbon.

They also submit that the 2020 Own Resources Decision, contrary to the assessment of the Legal Service of the Council of the European Union (cf. Council of the European Union, Opinion of the Legal Service, 24 June 2020, 9062/20, para. 155 ff.) infringes Art. 125(1) TFEU and, for that reason too, amounts to an ultra vires act. The applicants state that under Art. 125(1) TFEU, the European Union is not liable for and must not assume the commitments of any Member State, and no Member State is liable for or may assume the commitments of another Member State (the ‘no-bail-out clause’). They submit, however, that Art. 9(5) subpara. 2, first sentence of the 2020 Own Resources Decision provides that, if a Member State fails, in full or in part, to honour a call on time, or if it notifies the Commission that it will not be able to honour a call, in order to cover for the part corresponding to the Member State concerned, the Commission will provisionally have the right to make additional calls on the other Member States.

d) The constitutional complaint lodged in the principal proceedings is not manifestly unfounded either. Given the concerns raised by the applicants, it can at least not be ruled out completely that Art. 4 and Art. 5 of the 2020 Own Resources Decision in particular exceed the limits of the authorisation contained in Art. 311(3) TFEU. Nor can it be ruled out that in certain constellations, which are more precisely defined in Art. 9 of the 2020 Own Resources Decision, the authorisation of the European Commission to borrow up to EUR 750 billion on capital markets would make Germany liable for this debt and that this would affect the Bundestag ’s overall budgetary responsibility enshrined in Art. 110 in conjunction with Art. 20(1) and (2) in conjunction with Art. 79(3) GG.

2. Yet on the basis of a summary examination it does not appear highly likely that the Act Ratifying the EU Own Resources Decision and the underlying 2020 Own Resources Decision constitute a violation of the Bundestag ’s overall budgetary responsibility that would necessarily require the issuing of a preliminary injunction (cf. BVerfGE 132, 195 <234 para. 90>).

a) The Court has not yet had to decide whether and to what extent the principle of democracy directly gives rise to justiciable limits regarding the assumption of payment obligations or commitments to accept liability. In any case, with regard to the principle of democracy, only evident breaches of absolute outer limits are relevant (cf. BVerfGE 129, 124 <182>; 132, 195 <242 para. 112>). Payment obligations and commitments to accept liability can only be in breach of an outer limit following directly from the principle of democracy if, when they are called, such financial commitments not only had the effect of restricting budgetary autonomy, but would essentially negate this autonomy, at least for an appreciable period of time (cf. BVerfGE 129, 124 <183>).

When examining whether the scale of payment obligations and commitments to accept liability will result in the Bundestag relinquishing its budgetary autonomy, the legislator has a wide margin of appreciation, in particular with regard to the risk of the payment obligations and commitments to accept liability being called and with regard to the consequences then to be expected for the legislator’s latitude; the Federal Constitutional Court must, in principle, respect this margin. The same applies to the assessment of the future soundness of the federal budget and the economic performance of the Federal Republic of Germany (cf. BVerfGE 129, 124 <182 f.>), including consideration of the consequences of alternative courses of action.

b) On summary examination, the following reasons oppose a finding that the Bundestag has exceeded this wide margin and has consented to relinquishing its overall budgetary responsibility through the Act Ratifying the EU Own Resources Decision:

Art. 5(1)(a) of the 2020 Own Resources Decision, which authorises the European Commission to borrow up to EUR 750 billion in 2018 prices on capital markets, does not create direct liabilities for Germany or its federal budget. Such liabilities could only arise if EU funds were not sufficient for the European Union to comply with its obligations resulting from the borrowing pursuant to Art. 5 of the 2020 Own Resources Decision and if the Commission could not generate the necessary liquidity by activating other measures, such as recourse to short-term financing on capital markets (cf. Art. 9(4) first sentence of the 2020 Own Resources Decision). In this case the Member States are, in principle, only liable in proportion (‘pro rata’) to their respective contributions to the EU budget (Art. 9(5) subpara. 1 of the 2020 Own Resources Decision). Only in the event that a Member State fails, in full or in part, to honour a call to provide the necessary financing to this effect does the European Commission have the right to make additional calls on the other Member States, which again are only liable in proportion to their respective contributions to the budget (Art. 9(5) subpara. 2, first and second sentence of the 2020 Own Resources Decision). The foregoing is without prejudice to the liability of the Member State that failed to honour the call (Art. 9(5) subpara. 2, third sentence of the 2020 Own Resources Decision). The maximum total annual amount of cash resources that may be called from a Member State under Art. 9(4) first sentence of the 2020 Own Resources Decision, moreover, is limited to its GNI-based relative share in the extraordinary and temporary increase in the own resources ceiling of 0.6 percentage points of GNI (Art. 9(6) in conjunction with Art. 6 of the 2020 Own Resources Decision). Lastly, the 2020 Own Resources Decision stipulates that repayments of the principal of the funds in accordance with Art. 5(2) subpara. 2 are to start, subject to specified conditions, before the end of the Multiannual Financial Framework 2021-2027 period and that full repayment must be completed by 31 December 2058.

Limits apply to the volume, duration and purpose of the funds of up to EUR 750 billion in 2018 prices which the European Commission is authorised to borrow as well as to the potential liability of the Federal Republic of Germany. The funds in question are to be used exclusively to address the aftermath of the COVID-19 crisis (cf. recitals 14 to 18, 22 and 29, Art. 5 and Art. 6 of the 2020 Own Resources Decision and BTDrucks 19/26821, pp. 9 and 12 f.), which is to be further ensured by means of Regulation (EU) 2020/2094 and Regulation (EU) 2021/241.

Furthermore, the obligations arising from the 2020 Own Resources Decision are subject to a time limit. The Decision makes no provision for additional borrowing by the European Union. Even supposing that it were permissible under EU and constitutional law, such additional borrowing could only be achieved by means of an amendment to the 2020 Own Resources Decision, which would require a new unanimous Council decision and its ratification by the German Bundestag in accordance with Art. 311(3) third sentence TFEU in conjunction with Art. 23(1) GG and § 3(1) IntVG.

Accordingly, a summary examination indicates that it does not appear highly likely that the 2020 Own Resources Decision and the Act Ratifying the EU Own Resources Decision affect the Bundestag ’s overall budgetary responsibility that is protected by Art. 79(3) in conjunction with Art. 110 and Art. 20(1) and (2) GG.

If, within its wide margin of appreciation, the Bundestag assesses as very low the risk of Germany’s being held responsible for the liabilities of individual Member States, let alone all Member States, and therefore considers that the payment obligations and liability implications arising from the 2020 Own Resources Decision are tolerable, this must be respected by the Federal Constitutional Court in the context of a summary examination of potential encroachments on the Basic Law’s constitutional identity when it decides whether to grant a preliminary injunction. It must be determined in detail in the principal proceedings whether the design of the 2020 Own Resources Decision is fully compatible with the requirements arising from Art. 79(3) GG regarding the protection of the Bundestag ’s budgetary autonomy. In this respect, it will be necessary to review, in particular, whether the 2020 Own Resources Decision could lead to the creation of permanent instruments that essentially amount to an assumption of liability for decisions taken by other Member States, whether the potential liabilities incurred could structurally affect the Bundestag ’s budgetary powers, and whether it is ensured that the Bundestag retains sufficient parliamentary influence on decisions as to how the funds provided will be used (cf. BVerfGE 129, 124 <190 f.>; 132, 195 <241 para. 110>). Taking into account the scope of the liability risk, its duration and the Bundestag ’s limited involvement in setting the substantive conditions for the envisaged grants and loans, an encroachment upon Germany’s constitutional identity cannot be ruled out.

3. The weighing of consequences reveals that the disadvantages which would arise if the preliminary injunction sought were issued but the applications in the principal proceedings were unsuccessful (see a) below) weigh considerably heavier than the disadvantages that would arise if the preliminary injunction sought were not issued but the constitutional complaint were successful in the principal proceedings (see b) below).

a) If the preliminary injunction were issued, the Federal President would be barred from certifying the Act Ratifying the EU Own Resources Decision pending a decision in the principal proceedings, with the result that, pursuant to Art. 311(3) third sentence TFEU, the 2020 Own Resources Decision itself could also not enter into force until those proceedings were concluded. It is expected that the principal proceedings will take considerable time to conclude. If the Court were to find, contrary to the summary examination in the present order, that the 2020 Own Resources Decision did encroach upon Germany’s constitutional identity or that it did constitute an ultra vires act, the Court would moreover have to request a preliminary ruling from the Court of Justice of the European Union under Art. 267 TFEU (cf. BVerfGE 134, 366 <369 ff.>; 142, 123 <151 ff. para. 66 ff.>; 146, 216 <219 ff.>; 154, 17 <55 ff. para. 80 f.>). Past experience has shown that in such a case the proceedings could run to a total duration of two to three years. It is irrelevant in this respect that approval of the 2020 Own Resources Decision by a number of Member States is still pending.

aa) Such a delay in the entry into force of the 2020 Own Resources Decision would hamper, if not thwart, the achievement of its economic objective. It would not only destroy the impetus for economic development in the European Union provided by the NGEU recovery instrument but would also, according to the Federal Government’s assessment – which the Federal Constitutional Court must respect in this regard – raise considerable doubts as to the EU’s further economic development after the COVID-19 crisis. This applies especially with regard to the Member States that are to receive the largest shares of the grants of up to EUR 390 billion and of the loans of up to EUR 360 billion. The disadvantages resulting from a delayed entry into force of the 2020 Own Resources Decision, moreover, could prove irreversible and – given that, as a recovery instrument, the NGEU specifically aims to address the consequences of the COVID-19 pandemic and envisages measures to be taken within a relatively short period of time – undermine the objective pursued due to the dynamics arising from the pandemic.

bb) According to the Federal Government, delaying the entry into force of the Decision would also significantly strain foreign and European relations. Since the 2020 Own Resources Decision stemmed from a Franco-German initiative, the Federal Government fears considerable tension in Germany’s relations with France, an undermining of the credibility of its foreign and European policy and a further threat to cohesion among the Member States of the European Union. The Basic Law affords the Federal Government a wide margin of appreciation and prognosis in assessing foreign and European policy matters. This is because the Federal Republic of Germany cannot unilaterally shape foreign relations and related courses of events; rather, numerous circumstances outside its control are at play in this regard. The intention is thus to preserve wide latitude for the organs vested with sovereign authority in foreign affairs in assessing matters of foreign policy as well as the expediency of possible courses of action so as to enable the Federal Republic of Germany to implement its various political objectives within the limits set by international and constitutional law (cf. BVerfGE 40, 141 <178 f.>; 55, 349 <365>; 137, 185 <235 para. 138>; 143, 65 <91 para. 47>).

b) By contrast, the disadvantages that would arise if the preliminary injunction were not issued but the domestic Act Ratifying the EU Own Resources Decision were later found to be unconstitutional are less severe.

If the preliminary injunction were not issued, the Federal President could certify the Act Ratifying the EU Own Resources Decision, and the 2020 Own Resources Decision could enter into force once all Member States have ratified it. The European Commission would then be authorised to borrow up to EUR 750 billion in 2018 prices on capital markets on behalf of the European Union until the year 2026 (Art. 5(1)(a) of the 2020 Own Resources Decision). Additional liabilities for the federal budget could only arise if the overall assets of the EU were insufficient to cover the cash resources required for the repayment of the principal and interest on debts incurred by the EU on the basis of the 2020 Own Resources Decision. In this case, the Federal Republic of Germany would be required to cover the shortfall provisionally and in proportion (‘pro rata’) to its financial contribution to the EU budget (Article 9(5) subpara. 1 of the 2020 Own Resources Decision). In the event that other Member States would fail or be unable to honour their temporary obligation to provide additional financing, the German share would increase further (Article 9(5) subpara. 2 of the 2020 Own Resources Decision). In the event that all other EU Member States would fail to honour calls to provide additional financing, and on the basis of the Federal Government’s submission, the mathematically possible burden on the federal budget could amount to about EUR 21 billion annually until the year 2058. Both Bundestag and Bundesrat consider this scenario to be unrealistic.

If it were concluded in the principal proceedings that the 2020 Own Resources Decision amounted to an ultra vires act on the grounds that Art. 311 TFEU did not permit the EU borrowing provided for in Art. 4 and Art. 5 of the 2020 Own Resources Decision and that the integration agenda would thereby be infringed, it appears possible that the Court of Justice of the European Union – upon referral by the Federal Constitution Court pursuant to Art. 267 TFEU – could declare the 2020 Own Resources Decision void with regard to all Member States. This would mean that calls on the federal budget would lack a legal basis from the outset, and it would be necessary to renegotiate in respect of the resources required to fulfil the obligations already assumed by the EU under Art. 5 of the 2020 Own Resources Decision.

If the Federal Constitutional Court were to find that the 2020 Own Resources Decision constitutes an ultra vires act or hold, contrary to the summary examination in the preliminary injunction proceedings, that it encroaches upon Germany’s constitutional identity, it would be incumbent upon the Federal Government, the Bundestag and the Bundesrat to restore the constitutional order by all means available to them. They would have to find ways to stop the continued implementation of the 2020 Own Resources Decision, work towards obtaining the required rescission or amendment of the Decision – even if that required the consent of all other Member States – and take suitable action to limit its domestic impact to the greatest extent possible (cf. BVerfGE 134, 366 <395 f. para 49>; 142, 123 <211 ff. para. 170 ff.>; 151, 202 <299 para. 149>; 154, 17 <89 f. para. 109>). This action would include asserting repayment claims (Art. 9(5) to (8) of the 2020 Own Resources Decision) that had already accrued, opposing an update of the 2020 Own Resources Decision or not approving a new multiannual financial framework.

D.

The decision was taken with 7:1 votes as regards the reasons set out in sections C.I.2 and C.II.1.a; it was unanimous as regards the outcome.