A legal battle could yet sink the Greek bailout

ALTHOUGH the Greeks will vote today on the adoption of austerity measures, that vote could mean nothing if a court case launched by a group of five German citizens derails Germany’s financial contribution to the bailout. The group, led by Peter Gauweiler, a member of parliament for the Christian Social Union (CSU) party, includes legal academics led by Nuremberg constitutional law professor Karl Albrecht Schachtschneider. They argue that the bailout is unconstitutional both in German and European law.

In the first instance, they argue that the process by which the €22bn contribution to the Greek bailout package was approved by Germany was improper. Furthermore, they claim the moves infringe upon their rights as German citizens. On a supranational level, they lean on article 125 of the Lisbon Treaty – the so called “no bailout” clause which expressly forbids the EU or a member state from undertaking the responsibility of covering the debts of another member state.

According to Dr Volker Beissenhirtz, a German attorney at law with Schultze and Braun, there are already doubts as to the admissibility of some of the claims being brought, especially those that lean on the German constitution – basic law for the federal republic of Germany.

The claim brought by Gauweiler is that by fast-tracking the sanctioning of the €22bn German contribution to the bailout in just 24 hours, article 38 (1) of the constitution was breached – which states of MPs that “they shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience.”

The second claim is based on article 14, which covers property inheritance and expropriation. By using the money of German citizens, the plaintiffs claim that this article has been transgressed.

Beissenhirtz does not see these as being robust enough arguments to derail the bailout. However, the main brunt of the case being brought rests upon the Lisbon Treaty. While the group’s interpretation of clauses 14 and 38 of the German constitution could be seen as left-field by some, article 125 of the Lisbon Treaty explicitly rules out any bailout of another EU country. But it is likely that this article’s application will be a question of politics rather than of adherence to the rule of law. With nobody wanting to be the scapegoat for Germany’s economic demise, it is likely that the European Court of Justice will simply steamroll over this inconvenient clause and allow the bailout to go ahead unhindered.

As a German lawyer and a German citizen, Beissenhirtz does not want to see the bailouts go through. “You want to help Greece, but you will never help them in this way. There is no way that you can aid Greece through financing the bond markets. All that happens is the banks soak up the money, the Greeks are not aided and the taxpayer is left paying the bill.”

It is likely that the legal challenge will go the way of Stuart Wheeler’s 2008 challenge to the UK government’s ratification of the Lisbon Treaty – which failed. However, should it succeed it will be back to the drawing board for the response to the Greek crisis and straight to the long gold and euro-Swiss franc pair positions for traders.