Feb 202013
 

Once more, German authorities are pondering what to do with the extreme right NPD (officially “Nationaldemokratische Partei Deutschlands / Die Volksunion” after merging with its longstanding competitor DVU). While the Federal Council (which represents the 16 federal states) has already applied for a ban, government and parliament have not yet decided whether they support this move. Only the Federal Constitutional Court can ban a party, only these three institutions can act as plaintiffs, and the hurdles are high, as a qualified majority of the eight judges sitting on the case would have to vote in favour.The last ban was issued in 1956, and the government is duly afraid of another failure after the 2003 disaster.

Interestingly, both the Federal Council’s activism and the other institutions’ reluctance are based on a confidential report by a joint working party compromised of security people from both tiers of government and led by the Federal Office for the Protection of the Constitution, i.e. one of the federal secret service agencies. In a shock move, the NPD has posted what appears to be a 140-page executive summary of this report on its website today. Apparently, the party leadership is of the opinion that they appear as mostly harmless in the dossier.

The three-part PDF, apparently a scan of a paper copy, looks genuine enough. Its style, diction and classic Word 95 typography are all in line with what one would expect from such a document, and so is its content. The 2003 disaster was due to the excessive number of activists who moonlighted for Germany’s many secret service. This time, the authors have gone to great pains to collate material that is both public and not produced bye “source”, i.e. paid informers within the party. Interestingly, the statements in the document are classified into two categories: “A” for people who were not informers after January 1, 2003 (but possibly before that date), and “AD” for people who were not on the payroll at the time they made the relevant statement.

Consequently, most of this stuff is disgusting but phrased so that it is right at the boundary of what is legally acceptable.  Germany’s extreme right has decades of experience in crafting their statements in a way that remains just under the constitutional radar. Going through that material, one can see why the party published it on its website and gets the impression that it will be different to ban the party without relying on internal communications. NPD File

One of the most interesting points is the recommendation. The paper suggests in rather strong terms that a ban feasible and proportionate and yet, the government dithers. This indicates that either the federal people on the working party were outvoted (which seems unlikely from the phrasing), or that there is a rift between the political leadership and the services.

A final point concerns the way through which the party got hold of the document. Today, the internet is rife with speculation: Has the NPD, for decades targeted by agents, in turn infiltrated the services? Given that relations between the services and the party have been too close for comfort in the past, that would not be entirely implausible. There is, however, a simpler explanation. The document is stamped “VS – nur für den Dienstgebrauch”, which is the lowest classification level. Such files are normally accessible by a large number of people within an office. Given the rather enthusiastic recommendation issued in the report and the reluctance of the government to act on it, it’s easy to imagine someone in an agency or a ministry leaking the paper to the press, where anyone could have passed it on to the party.

Jun 212012
 

Yesterday, the BBC’s man in Berlin discovered that there are constitutional limits to Merkel’s ability to somehow save the Euro. Following a constitutional amendment in the 1990s, article 23 of the Basic Law stipulates that any further transfers of sovereignty to the EU require absolute two-thirds majorities in both the Bundestag and the Federal Council (which represents the Länder). That is a tough call. Her Majesty’s government may talk about red lines, Germany has them.

Just yesterday, the Federal Constitutional Court strengthened the role of parliament in a ruling on the decision through which the temporary bailout fund EFSF had been implemented last year. While this does not affect the EFSF’s status, it further increased the pressure on the government to liaise with parliament, the states, and the opposition parties.

Today, it briefly looked like the saga of saving the Euro could go ahead as far as Germany is concerned: Merkel’s coalition, the Social Democrats and the Greens declared that they had reached an agreement on the fiscal pact and the permanent ESF. That seemed to leave only the issue of securing a super-majority in the Federal Council, a formidable task in itself as the Länder are concerned about further restrictions on their already very limited spending powers.

Then, things got messy: the Left and a dissident MP declared that they would challenge the two treaties in the Federal Constitutional Court. The court in turn asked the Federal President not to sign the ratification bills into law for the time being so that they would have enough time to deliberate (once the treaties are ratified, a ruling by the FCC would be quite pointless). While this is not totally uncommon, the court held a press conference to make the public aware of the issue. It does not get much more uncommon in Germany. The president, who allegedly had been lobbied by the government to ratify the treaties before July was then forced to publicly declare that he would heed that request.

Like the content and the context of the bailout packages, all this is very unusual. Today’s events do not yet a constitute a constitutional crisis. But they do provide even more evidence  that we are living in very interesting times.

Jun 012012
 

You may or may not be aware that the EU commission has announced yesterday that it will take Germany to court over the country’s failure to transpose the data retention directive into national law. The commission also proposed that the ECJ should impose a fine of € 315 036.54 per day on Germany. And no, I have no idea where the 54 cent come from, in case you wanted to ask that question.

While this sounds serious, infringement procedures are rather common. The commission’s press release specifically mentions Austria and Sweden, who also failed to implement the directive. Moreover, the commission alone initiated several hundred infringement cases in every single of the last fifteen years, on top of thousands of complaints by third parties.

What makes the recent case unusual is its domestic background: First, Germany agreed to the original directive, which regulates the retention of traffic and location data, in 2006. In 2010, however, Germany’s powerful Federal Constitutional Court declared the German law that implemented the directive unconstitutional and therefore null and void, which chimes with last week’s seminar session on the perpetual conflict between European law and the German idea of constitutional review. The commission is used to this kind of trouble with the Germans and was prepared to wait a year or two for the Germans to draw up and vote on a constitutional implementation of the directive.

But, to use the rather indignant phrase from the commission’s statement the “German authorities have not indicated how and when they will adopt new legislation that fully complies with the Directive”. More specifically, the government cannot make up its mind. The home office, led by the centre-right CSU, complains that Germany must fulfil its obligations and urgently needs a law that implements the directive. The ministry of justice, which is controlled by the liberal FDP, blankly refuses to draw up such a bill, claiming that data retention is ineffective, and that the EU will soften up the current directive anyway. Yesterday’s sole comment from the ministry was that they “were not surprised” by the commission’s move. And so, Germany remains on its collision course because of a deadlock within the coalition.

 

Mar 142012
 

Much to everybody’s surprise, the minority government in North Rhine-Westphalia collapsed today. Minority governments are a rarity in Germany. The federal constitution, reflecting Germany’s inter-war experience of unstable governments and intense political strife, practically rules them out. Constitutional details at the state level differ but the general assumption is that the government needs the reliable support of a majority of MPs. The increasing fragmentation of the German party system, however, plays havoc with these constitutional patterns.

In 2010, the land election brought about political deadlock in NRW, a state that has roughly the size, population, and GDP of the Netherlands. Neither of the two major parties (SPD and CDU) could form a majority government without at least two of the three minor parties (the Greens, the FDP (liberals), and the Left). Lengthy negotiations to form a Grand coalition or various three party coalitions (CDU/FDP/Greens, SPD/Greens/Left, SPD/Greens/FDP) failed, leading to the eventual constitution of a red-green minority government that proved remarkably stable.

Its unexpected downfall resulted from a legal twist. Today, the state parliament voted on the budget in a second reading. During this session, votes were scheduled for every single chapter of the whole budget. Both FDP and the Left were set to vote against the government, expecting that they could extract concessions from the government before the third and final reading in two weeks time. But yesterday, constitutional lawyers working for the state parliament informed the parties that due to its specific structure, a vote against any chapter would terminate the budgetary process without a third reading. The government, on the other hand, had declared that it could not operate without a constitutional budget and would seek to dissolve parliament.

This left the FDP and the Left with the choice to lose face or risk the loss of parliamentary representation, as they are not doing well in the polls. This afternoon, they chose the latter. Elections will be held in May.

At the moment, we do not know who asked for the legal opinion, whether the advice was controversial, and why the budget was structured in such a peculiar way. The document has been leaked to the press, but has not been published in full.

A telephone poll by Infratest dimap predicts a majority for a new red-green coalition, with the FDP truly and well below the five percent threshold and results for the Left and the Pirate party to close to call. But this is, of course, just the beginning of the campaign.