Successful application in Organstreit proceedings regarding the Federal Government’s duty to inform Parliament on the third aid package for Greece

Press Release No. 43/2021 of 26 May 2021

Order of 27 April 2021
2 BvE 4/15

In an order published today, the Second Senate of the Federal Constitutional Court decided, upon application by the Bündnis 90/Die Grünen parliamentary group in the German Bundestag, that the Federal Government violated the Bundestag’s right to information following from Art. 23(2) second sentence of the Basic Law (Grundgesetz – GG) by failing to provide comprehensive and timely information to the Bundestag on its negotiation strategy, prior to the Eurogroup meeting on 11 and 12 July 2015 and the Euro Summit on 12 and 13 July 2015, in regard to whether Greece should remain in or temporarily exit the euro area.

Facts of the case:

With a view to overcoming the sovereign debt crisis, the finance ministers of the euro area (hereinafter: the Eurogroup) and other participants negotiated for a third aid programme for Greece at a meeting from 11 to 12 July 2015, preparing the summit of the euro area heads of state and government on the same topic (hereinafter: the Euro Summit) on 12 and 13 July 2015.

When providing information to the Bundestag’s Budget Committee on 30 June 2015, the Federal Minister of Finance stated that Greece could not remain in the euro area without a (reform) programme; in extreme circumstances, Greece would have to be cut off from the European Central Bank’s payment system, in which case the need for a temporary parallel currency could arise. From 9 to 11 July 2015, the Federal Government held extensive deliberations with the governments of the other euro area Member States with the primary aim of negotiating a solution allowing Greece to remain in the euro area. In this context, the Federal Minister of Finance also raised the question of what options would remain in case the negotiations failed. To prepare for the negotiations of the Eurogroup and the Euro Summit, the Federal Ministry of Finance drew up an English-language document on 10 July 2015 at approximately 2:00 p.m. In this document, the reform proposals submitted by Greece on the previous day were rejected as insufficient and the option of swift negotiations on a time-out from the euro area was put forward in case Greece could not ensure a credible implementation perspective for reform. According to the then President of the Eurogroup, the Federal Ministry of Finance emailed the document of 10 July 2015 to him, other leaders and a small group of top officials of the euro area that same evening. At the Eurogroup meeting, the Federal Minister of Finance again raised the question of how to proceed in case the negotiations with the Greek government failed. He had the document of 10 July 2015 at that point. On 12 July 2015, two sentences on a possible Greek time-out from the euro area and on a transfer of Greek assets were included in brackets at the end of the final document drawn up by the Eurogroup; these were very similar to the wording in the document drawn up by the Federal Ministry of Finance. The final document of the Eurogroup meeting, including the additions in brackets, was shared with the subsequent Euro Summit and was taken into account in the deliberations there. The Federal Government (the respondent in the present proceedings) forwarded the document of 10 July 2015 to the German Bundestag on 12 July 2015 at approximately 4:00 p.m., following the meeting of the Eurogroup. The Federal Government communicated the results of the Euro Summit to the Bundestag on 14 and 16 July 2015.

The applicant objects to the failure to provide timely information to the Bundestag on the Federal Government’s negotiating strategy prior to the Eurogroup meeting and the Euro Summit.

Key considerations of the Senate:

The application is admissible and well-founded.

Under Art. 23(2) second sentence GG, the Federal Government is required to notify the Bundestag and the Bundesrat of matters concerning the European Union comprehensively and as early as possible.

1. The “comprehensive” notification of the Bundestag primarily serves to provide the Bundestag the opportunity to influence the Federal Government’s decision-making processes early and effectively. The extensiveness of the required notification increases the more complex a matter is, the more it affects the sphere of responsibility of Parliament, and the closer one is to formal decision-making or agreement. Agreements and mechanisms that significantly affect the Bundestag’s competences, and in particular its overall budgetary responsibility, give rise to a full and detailed duty to inform. In this respect, the duty to provide comprehensive and early notification also extends to initiatives and positions taken by the Federal Government.

2. In principle, sharing information with the Bundestag is also not ruled out in cases where the information in question might be confidential. Where the interests of the state (Staatswohl) could be jeopardised by the disclosure of confidential information, the information can be provided in a manner that safeguards its confidentiality.

3. Limitations to this duty to provide information arise from the principle of the separation of powers (Art. 20(2) second sentence GG). There is a core in which the Government carries responsibility for autonomous executive decision-making, encompassing a sphere in which the Government is free to launch initiatives, to deliberate and to take action – this sphere in principle does not have to be laid open. This core includes Government’s decision-making process, both with regard to deliberations within the cabinet and the preparation of cabinet and ministerial decisions. Government action does not fall within this core when and insofar as the Federal Government has reached interim results or developed positions and uses these as a basis for its external actions. In such cases, the Federal Government’s decision-making process has reached conclusion at least where the Government intends to go beyond the realm of internal coordination and to present its position – even if it is only preliminary – in negotiations with third parties.

4. The duty to provide information is subject to strict rules on timing. The Bundestag must receive the Federal Government’s information at the latest at a time that allows the Bundestag to properly address the matter in question and to work on adopting a position before the Federal Government issues binding declarations with external effect. Therefore, official documents, reports and communications as well as any unofficial information must be shared with the Bundestag as soon as they enter the Federal Government’s sphere of influence.

II. According to these standards, the application is well-founded.

1. The Federal Government’s negotiating position, including its proposed solutions, were subject to the duty to inform arising from Art. 23(2) GG. The Bundestag was therefore entitled to be notified of this position prior to the meeting of the Eurogroup and the Euro Summit.

a) The negotiations concerned tens of billions in additional financial aid to be granted to Greece under the European Stability Mechanism, and thus would have a direct effect on the Bundestag’s budgetary powers and its overall budgetary responsibility as indispensable elements of the constitutional principle of democracy. The same applies to the option, put forward for discussion, of a temporary Greek exit from the euro area, given that this scenario, too, would have very significant effects on European integration and the federal budget. In light of the paramount significance and complexity of this matter, an especially close involvement of the Bundestag would have been required.

b) The Federal Government’s plan and position prior to the Eurogroup meeting and the Euro Summit also included the contents of the document of 10 July 2015. The respondent cannot claim that this document merely concerned internal considerations at the Federal Ministry of Finance. In the meeting of the Budget Committee on 16 July 2015, the Federal Minister of Finance emphasised that his position at the Eurogroup meeting had been coordinated with the Federal Government. Moreover, on 9 July 2015, the Federal Chancellor, the Deputy Chancellor and the Federal Minister of Finance had held discussions in which a voluntary and temporary exit of Greece from the euro area was addressed, at least as an aside. The negotiating position of a cabinet member can be attributed to the Federal Government if said member represents the Federal Republic of Germany in negotiations at the European level and manifestly acts as Germany’s representative.

c) It is also irrelevant in what form and manner the Federal Government contributes a proposal on European matters. The contents of the document of 10 July 2015 described the Federal Government’s negotiating position and possible courses of action from the Federal Government’s perspective in relation to third parties at that time, were communicated to external parties and brought to the attention of the other participants in the negotiations. That the document was intended for coordination with third parties is also evident from the fact that it was written in English and some of the sentences from the document, in slightly modified form, found their way into the official final document of the Eurogroup meeting. Moreover, according to the uncontested account of the then President of the Eurogroup, the Federal Ministry of Finance emailed the document to him, other leaders and a small group of top officials of the euro area on the evening of 10 July 2015. This amounts to initiating a coordination process at the European level, which would have required the Federal Government to provide substantive information to the Bundestag.

d) The Federal Government’s submissions, according to which its negotiating position had not yet definitively been fixed and thus remained “volatile”, do not lead to a different conclusion. If the Federal Government puts forward new options and proposed solutions for discussion with its European partners regarding a very significant matter, this external decision is also subject to the duty to provide information arising from Art. 23(2) second sentence GG. It was clear by 2:00 pm on 10 July 2015 at the latest that the Federal Government would present the contents of the document of 10 July 2015 to its European negotiating partners in the Eurogroup. This also included broaching the option of a temporary exit of Greece from the euro area. Therefore, the Federal Government would have been required to communicate to the Bundestag its intent to launch a discussion at the European level on the options set out in the document of 10 July 2015. The other information provided to the Bundestag was not sufficient to fulfil the Federal Government’s duty to inform.

2. The information on the Federal Government’s negotiating position would have had to be shared with the Bundestag at the earliest possible moment, and thus much earlier than 4:00 pm on 12 July 2015. A duty to provide information arises as soon as it is certain that a proposal or an initiative by the Federal Government is to be addressed in negotiations at the European level, and will thus be communicated to external parties. As soon as the Federal Minister of Finance, acting on behalf of the Federal Government, had decided which proposals he wanted to put forward in the negotiations of the Eurogroup, the Federal Government was obliged to provide this information to the Bundestag. This was at 2:00 p.m. at the latest, when the document of 10 July 2015 had been drawn up. The Federal Government was also not entitled to refuse to provide this information on the grounds that there was not enough time for the Bundestag to adopt a position. Whether and how the Bundestag reacts to information provided to it at short notice in cases of urgency and whether it adopts a position on such matters falls within the Bundestag’s margin of assessment and manoeuvre. Subsequently providing the information in question, once the Eurogroup meeting was concluded and following the start of the Euro Summit, does not remedy the violation of the duty to inform.