July 26, 2015 2:23 pm
The make believe world of eurozone rules
Wolfgang Münchau
The disagreement between Germany and the ECJ is not about the law, but politics and economics
Whenever you are in a room with European officials and discuss the euro, there is usually somebody who raises his finger and says: “This is all well and good, but it is ‘against the rules’.” It then gets very quiet.
The situation reminds me of a short story by Franz Kafka, Before the Law, where a man tries to seek entrance to a courthouse. A door keeper tells him that this is possible in principle, but not at the moment.
The man spends his entire life in front of the court waiting to be admitted. At the end of his life he was told that he could have gone through the door at any time. That man followed the wrong set of rules — rules of the mind, not of the law.
Rules of the mind is what we are dealing with in the European debate about the single currency. Many of these rules either do not exist, or they constitute some rather far-fetched interpretation of existing rules.
During the recent Greek crisis, I came across a completely new rule. I first heard it from Wolfgang Schäuble, the German finance minister. It says that countries are not allowed to default inside the eurozone. But a default was perfectly fine once they leave the euro, on the other hand.
Actually, as it turns out, there is no such rule. There is only Article 125 of the European Treaty on the Functioning of the European Union. Article 125 says that countries should not take on the debt of other countries. This is also known as the “no-bailout” clause — though that, as it turns out, is a rather loaded interpretation.
In its landmark Pringle ruling — relating to an Irish case in 2012 — the European Court of Justice said bailouts are fine, even under Article 125, as long as the purpose of the bailout is to render the fiscal position of the recipient country sustainable in the long run.
In another landmark ruling, from June this year, the ECJ supported Mario Draghi’s promise to do whatever it takes to help a country subject to a speculative attack.
So what then can we infer from the previous ECJ rulings in the absence of an explicit ruling from the court on debt relief?
An interesting article by three authors from Bruegel, a European think-tank, concludes that debt relief is almost certainly consistent with current law.
Add the two together, and you have debt relief. I am not sure whether the ECJ would follow this argument precisely if this ever came to court. The court would probably impose some constraints. But I would be surprised if the ECJ were to follow the German interpretation now when it rejected it previously.
Why do Germany and the ECJ disagree so much? The overt reason is that European law on monetary union is internally inconsistent, and thus open to different interpretation. It neither allows an exit, a default nor a bailout, and has therefore no clear procedure in the event of a financial crisis.
In addition, German constitutional lawyers do not allow economic considerations to enter their legal arguments, while the ECJ justices do. At a deeper level, the disagreement is not about the law, but about politics and economics. The new “no-default” rule is a political aspiration dressed up as legal constraint.
What is really happening is that Germany does not want to grant Greece debt relief for political reasons, and is using European law as a pretext. Likewise, when Mr Schäuble proposes a Greek exit from the euro, ask yourself what rule that is consistent with.
The fact is they are making up the rules as they go along to suit their own political purposes.
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