Ultra Vires ECB

Ultra vires is a latin phrase meaning literally “beyond powers”. If an act requires legal authority and it is done with such authority, it is characterised in law as intra vires. If it is done without such authority, it is ultra vires. Acts that are intra vires may equivalently be termed “valid” and those that are ultra vires “invalid”.

The verdict of the German Constitutional Court (GCC) last friday february 7 to declare the European Central Bank’s (ECB) Outright Monetary Transactions (OMT) program Ultra Vires, that is, not compatible with the EU Lisbon Treaty and with the German Constitution, but at the same time avoiding taking any binding resolutions and sending the case to the European Court of Justice (ECJ) has confused everybody.

We already discussed the issue of the GCC’s stance in relation to the ECBs programs and policies here and here and here and here. Now we update and continue this analysis.

In his editorial “The Euro after the Karlsruhe ruling” FT supports the GCC in its letting the ECJ decide on the process while at the same time criticizing that the argumentation by which the GCC considers the OMT Ultra Vires: “The judges in Karlsruhe argue that OMT goes against the ECB’s mandate since it amounts de facto to monetary financing of government debt – which is prohibited under article 123 of the European Treaty. This is also the position of the Bundesbank, Germany’s central bank, which has consistently opposed OMT. But this interpretation is highly questionable, since the ECB would only buy bonds on the secondary market. The court also claims that the bond-buying scheme goes beyond the ECB’s remit, which is limited to monetary policy. But OMT was necessary to overcome the fragmentation of the Eurozone credit market, which made it impossible for the ECB’s monetary policy to work.”

What the FT editorial forgets to mention though, is that in reference to purchases in the secondary market not being explicitly forbidden by article 123 of the European Treaty, the GCC declared that “es liegt auf der Hand, dass dieses Verbot nicht durch funktional äquivalente Massnahmen umgangen werden darf”, that is, purchasing bonds in huge quantities on the secondary market would conceptually be equivalent to acquiring them in the primary market, which is illegal, as is commented in the FAZ article “Die Angst der Verfassungsrichter”.

According to FT’s Alphaville “the decision to refer the OMT to the ECJ shouldn’t cause a political storm in Germany: the political institutions that matter long ago made their peace with the OMT. But the confusion about what the OMT does — Gerhardt alone nails it there — hardly helps.”. They argue that the german parliament, the Bundestag, has already had opportunity to boycott the OMT, and that the fact that it has chosen not to, would give democratic legitimacy to the ECB’s plan.

Also in the FT’s piece “Germany’s Constitutional court and the bond-buying plan” argues for a partial victory for the ECB, since they expect “the ECJ to sing from the ECB’s hymn sheet”, but they also have caveats: “The ECB is not completely off the hook, however. Until the ECJ makes its decision, uncertainty about the legality of OMT will persist. Some of the leading plaintiffs who brought the case in Germany argued on Friday that the ECB would not dare to activate its bond-buying scheme so long as the ECJ was considering the case – an exercise that could take at least a year.”

Gunnar Beck a law professor at London University, is cited in the same article  and blasted the GCC’s decision as “legally indefensible”, emphasizing that the constitutional court’s decision marks the first time it has handed a case to the European court:  “Up to now the [constitutional] court had consistently maintained that it alone – and not the EU courts – had the final say on whether the EU institutions exceeded their competence. Because if this matter were left to the court of justice of the EU, Germany would lose any control over the transfer of sovereign rights to the EU under the EU Treaties.” and “Today’s decision therefore amounts to nothing less than a surrender of sovereignty by Germany’s highest court.”

We can find a good summary of the GCC’s resolution in “Ein Richterspruch mit Risiko” @ Zeit Online where the main points are clearly synthesized: 1) The OMT program would have “Verteilungseffekte” (distribution effects), in that it would favor bonds of some countries (supposedly the ones from the most indebted countries, Greece, Portugal, Italy, Spain, Ireland) over those of other members of the Eurozone, which would amount to state financing, something that the ECB is not allowed to do. 2) The OMT program should not have as objective the artificial modification of government bond rates of the different countries of the Eurozone, bond prices should not be manipulated (“Eingriffe in die Preisbildung am Markt”), but that is precisely what the OMT is supposed to do. 3) Finally, the GCC leaves an open door for a “decaf” OMT that would comply with conditions 1 and 2 already mentioned and, also, the size of the program would not be unlimited (“whatever it takes”) but with a definite and finite size beforehand.

So what can we conclude of it all?

  1. Although the GCC’s remit of the OMT case to the ECJ appears to be a victory for Draghi’s co-opted ECB, the fact stands that it will be more difficult for the ECB to implement its OMT program while its legality has already been declared null by a 6 to 2 vote at the GCC and there is a pending case relating to the same issue before the ECJ. Although everybody assumes that the ECJ will give a favorable ruling as to the legality of the OMT program, what if it did not? Does the ECB want to run the risk of having started a program whose legality has been denied by the GCC and on which the ECJ has yet to issue its ruling?
  2. At the very least the GCC has argued and conveyed the idea that the OMT is illegal, and that if the ECB finally decides to use it, it will be with “dirty hands”. Also, and it is not a negligible victory, the pressure on the ECB to avoid using the OMT before the ECJ has issued its verdict will be enormous.
  3. Opposition by german citizens to the OMT, and to the ECB policies in general will not disappear with this resolution. The idea that Mario Draghi’s ECB has been co-opted, will, if anything, increase, creating a moral hazard issue that the ECB  will find increasingly difficult to ignore.
  4. The importance of the final outcome of this case goes well beyond the economic and financial consequences of the possible implementation of a “money printing” program by the ECB. Its main significance lies in the question of whether legality in Europe has any meaning anymore, whether to fulfill globalist (?) dreams international treaties and national constitutions can be superseded.
  5. Perhaps this resolution should be analyzed and judged in the context of what governments and parliaments have done since the global economic and financial crisis exploded in 2008. If something characterizes the economic and monetary policies in the West in the last 5 years, is, on one side, almost unlimited money creation by central banks, labeled differently depending on the country (QE, LTRO, pegging of the Swiss Franc to the Euro, the japanese “three arrows program” etc. etc.), and an almost biblical reluctance on the part of governments to rein in the financial sector that has had to be rescued, at tax payers’ cost, everywhere. Like Simon Johnson argued a few years ago in “The Quiet Coup”, the financial sector has co-opted the state. He was talking about the USA, but the same argumentation could be applied to most western countries. What some people call New World Order (NWO) or Neofeudalism, has advanced, not gone backwards, in this crisis. That being so, was it perhaps not too much to expect the GCC to swim alone against this NWO tide? By voting against the OMT 6-2, naming it illegal, and referring the case to the ECJ, they have perhaps shown as much courage as they’ve been able to summon and, in any case, much more than governments and parliaments.

The GCC could have done better, it could and it should have declared the OMT illegal without remitting the case to the ECJ, but in a world in which the NWO finds almost no opposition, it could also have done worse. In the end, we doubt Mario Draghi is happy with the GCC’s resolution and, inasmuch as he is unhappy with it, the GCC snatched a small victory from the jaws of defeat.

“How so? Breaking the law has now become a sort of routine”

In an interview with Die Presse, the former chief economist of the European Central Bank (ECB) discusses the latest decisions taken by this institution and asserts that from 2010 on, the ECB has given in to pressure from the outside (“Sie hat dem Druck von außen nachgegeben”). Asked about whether this pressure originated in the USA, he answered simply that it came from outside of Europe (“Druck von außerhalb Europas”).

Mr. Stark discusses the process by which the ECB, with the acquiescence of Euro zone governments has gradually loosened and finally broken its mandate, the preservation of price stability, and the huge inflationary dangers contained in its latest decisions, most specially the announcement on September the 6th of its Outright Monetary Transactions (OMT) program.

Zerohedge  comments the same interview: “…the former banker said what everyone without a PhD understands quite well: “The break came in 2010. Until then everything went well…”Then the ECB began to take on a new role, to fall into panic…. Together with other central banks, the ECB is flooding the market, posing the question not only about how the ECB will get its money back, but also how the excess liquidity created can be absorbed globally. “It can’t be solved by pressing a button. If the global economy stabilises, the potential for inflation has grown enormously… It gave in to outside pressure …pressure from outside Europe” Why, whichever bank headquartered at 200 West, NY, NY might he be referring to?”

At the end of the interview Mr. Stark, when asked about for how much longer can Germany oppose the ECB’s policies, answers: “The German Constitutional Court (GCC) has declared that the purchase of government bonds by the ECB [OMT program] collides with the rule that forbids state financing by the ECB. This leaves the Bundesbank in a conflicting position. A very difficult situation “:

Both the last question by the journalist and Mr. Stark’s answer are the most interesting part of the interview. The question goes like this: “How so? Breaking the law has now become a sort of routine”…

…and Mr. Stark’s answer: “…I would also see it this way: there is a continued collective breaking of the law”.

Die wirkliche Wirklichkeit

We argued in a recent post that the ESM violates Germany’s constitution and the EU treaties. Today the German Constitutional Court (GCC) ruled that the ESM and its ‘fiscal treaty’ on budget discipline do not violate the country’s Basic Law and do not undermine the Bundestag`s sovereignty over budget issues, according to Openeurope. Although the full ruling is expected in early 2013, Openeurope remarks a few aspects of today’s resolution:

  1. Cap of €190bn on German ESM contribution, which can only be overturned by the Bundestag.
  2. Both houses of German Parliament need to be adequately informed about all ESM decisions – something which needs to be enshrined in “international law”.
  3. Reinforced that Bundestag approval needed for all activations of the ESM.
  4. Explicit ban on ESM borrowing directly from European Central Bank (ECB).
  5. The German Government can terminate ESM at any time, as recognised under “customary international law”.
  6. In its full ruling, expected in early 2013, the Court will also consider whether the ECB’s bond-buying programme, the OMT, has transferred illegal degrees of sovereignty to the EU-level.

If respected, #1 ruling would limit some of the potential risks that the creation of the ESM pose to the countries (and ultimately their taxpayers) funding the ESM, most specially Germany. Effective maximum potential financial costs to Germany would be capped at 190 billion Euros, invalidating the articles of the ESM allowing for potentially unlimited liabilities.

#2 and #3 reinforces Bundestag veto over ESM activation: the decision also states that any future ESM bailouts will require parliamentary approval, stating that the Bundestag “must individually approve every large-scale federal aid measure on the international or European Union level”.

#4 bans on the ESM borrowing from the ECB: the Court says that “borrowing by the ESM from the European Central Bank” would be incompatible with EU law (Article 123 TFEU). This is a surprisingly categorical rebuke, especially over an issue of EU rather than German law.

#6 addresses not the ESM but the latest ECB asset purchase program, named Outright Monetary Transactions (OMT). The GCC suggested in its press release that the ECB’s OMT will be considered in its final ruling on these complaints. The exact criteria upon which the programme will be assessed is unclear but broadly the Court will determine whether it transfers additional German sovereignty to the European level above and beyond that which the country has committed itself to in the EU Treaties.

What does it all mean? With a firm cap on the ESM, the ECB is now most certainly the only actor with deep enough pockets to put Spain and Italy on life-support – together with the OMT announcement the ruling has shifted the burden back to the ECB. However, the ruling and the role of the Bundestag highlights that activating the OMT will be challenging, since in order to qualify for ECB bond-buying, a country must first get funding from the ESM – and be subject to conditions. If the Bundestag agrees to activate more bailouts, it will most certainly push for harsher conditions than what debtor countries – most importantly Spain – are willing to accept. In the long-term, under current arrangements of linking ESM and OMT, the latter is also effectively capped and subject to a Bundestag veto.

If this is so, the caveats in the GCC’s resolution are not minor, why did markets continue to rally today? An answer to this question is hinted in today’s Die Welt’s article, Karlsruhe weiß, wo Europas Hammer der Macht hängt, whose last sentence goes like this: “the GCC, that for us is almost as holy as the Bundesbank, is only one of the Players in the european Game, and not the most powerful one” (“Das Bundesverfassungsgericht, das uns fast so heilig ist wie die Deutsche Bundesbank, ist auch nur ein Spieler im europäischen Spiel, und nicht der mächtigste”).

If, from a german perspective, its constitutional court is not the biggest, ultimate player, who is? If, as Die Welt’s article also implies, the GCC takes its decisions not only considering Germany’s Basic Law, but also in the context of the “wirkliche WirklichkeitI”, the “real reality”, what is that reality’s content?. Mr. Thomas Schmid, the author of Die Welt’s article, hints at the European Union’s centralist drive that gradually hollows national sovereignty and places it in supranational bodies, most specially the ECB, Mario Draghi’s ECB, that does no longer fear to antagonize its most important member, the Bundesbank. The ECB, that is also supposed to be the supervisor of ALL european banks, according to the latest proposal of the European Commission (EC), emerges as an almost all-powerful institution, mostly unaccountable to national governments and not even to the European Union. What and who does the ECB stand for?. Certainly not monetary orthodoxy and price stability as is written in its charter. In whose hands does Germany’s sovereignty lay? Perhaps a review of Mr. Mario Draghi’s biography would be helpful in answering this question.

“The tears I have cried over Germany have dried. I have washed my face.” – Marlene Dietrich

As 54% of Germans Want Constitutional Court to Kill the ESM doubts about next wednesday’s resolution of the German Constitutional Court (GCC) increase in the financial community

Germans could be consigned to serfdom to save the Euro @ The Guardian In this article Mr. Gunnar Beck argues that the ISM might ruin Germany and leave the country in a sutuation of practical serfdom

“Don’t Count Your Hahnchen”: 40% Chance German Court Does Not Ratify ESM @ Zerohedge Even among the anglosaxon financial communtiy, doubts arise as to the resolution of the GCC on wednesday. A “yes” to the ESM no longer seems a done deal, according to Morgan Stanley

Are The Krimson Karlsruhe Knights About To Say Ni-en? @ Zerohedge Bank of America, Berenberg and Daiwa Capital also have some doubts about the GCC`s resolution

The ESM violates Germany’s constitution and the EU treaties, a true trojan horse

Today Die Welt publishes an article signed by Gunnar Beck, professor of EU law at the University of London. In it, Mr. Beck dissects the ESM treaty and proves that it clearly violates both Germany’s constitution and EU law. The ways in which the ESM violates german and/or EU law are the following:

  1. Unlimited capital. Germany’s constitutional court made clear in past resolutions that any increase in the financial responsibility of Germany arising from EU rescues of weak european countries should be explicitly voted in the german parliament, who would have the right to oppose any additional financial burden. According to the authorized capital of the ESM, 700 billion Euros, Germany’s part would be capped at 190 billion Euros (in proportion to its share of the Eurozone’s GDP) . This would be the case if the ESM treaty did not allow for its shares to be issued at values other than par. While this is true for the first 80 billion of capital, according to article 8.2, subsequent capital issuance can be done at values other than par. This means that, in practice, capital can be as high as the governors of the ESM decide it to be. The only thing they need in order to increase capital above the 700 billion limit is to issue shares of the ESM at a higher than par value. For instance, the ESM could issue 1 million shares at a premium of 100% to its 100000€ par value, that is, 200 billion Euros of capital would be obtained, but only 100 billion of those would count towards the capital limit rule. This way, effective capital could be as high as approved by the governors of the ESM, without breaking the 700 billion authorized capital rule.
  2. “Eurobonds”. Article 21 of the ESM treaty allows the issuance of unlimited amounts of debt in financial markets, introducing “eurobonds” through the back door.
  3. Joint and Several Liability. In the event that one of the signing countries was unable to pay for its share of capital to the ESM, the remaining countries would be responsible for the amount not being paid by the country unable to fund the ESM. In practice this means that rich countries might be responsible not only for their part, but for that of the countries unable to pay.
  4. Bank license. According to article 32.9 the ESM needs no banking license to lend money in markets. Also, as “bad bank” the ESM can finance itself at the ECB. Finally, according to article 19, the ESM has the authority to rescue insolvent banks. A true bank in everything but name.
  5. Immunity. According to article 35, ESM governors have legal immunity against any decisions taken by them in the ESM. Also, resolutions by the ESM can not be revoked by any judicial means.
  6. Secrecy. According to article 34, members of the ESM have a lifelong obligation of confidentiality on matters related with the ESM.

A complete assessment of the laws broken or superseded by the ESM go well beyond the scope of this post, but it seems clear that the ESM, if approved, will permanently change the Eurozone’s financial architecture, diluting national sovereignty, making irreversible the subservience of  Eurozone countries to an entity, the ESM, that nobody voted into power. What a feat! Cui Bono?