Finance Minister Christian Lindner (FDP) begins his term of office with a delicate operation.

One day after the official takeover of the house on Wilhelmstrasse, there was a remarkable double blow: On the one hand, the FDP politician directed the draft for the supplementary budget for 2021 to his cabinet colleagues.

Manfred Schäfers

Business correspondent in Berlin.

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As early as next Monday, the government wants to introduce legislation that will use unused credit authorizations of around 60 billion euros from this year to replenish the energy and climate fund.

On the other hand, the Stability Council met, actually a tame body made up of politicians that oversees the budget management of the federal and state governments.

But its advisory board is independent.

And he used this space and sharply criticized the traffic light plans.

If the funds that were set up turned out to be no longer necessary, the debt would have to be correspondingly lower, he warned in his statement.

"Because with the exception clause it would not be justifiable if budget buffers from the planning were used for other purposes (for example to create reserves for subsequent years)."

Lush new borrowing is planned

But that is exactly what the SPD, Greens and FDP intend to do.

As finance minister, the social democrat Olaf Scholz had planned a large amount of new debt.

With reference to the pandemic, he had a net borrowing of 240 billion euros approved by the Bundestag - an amount that is many times higher than the permissible new borrowing in normal times.

But Corona years are anything but normal, the emergency allowed this.

But now, shortly before the turn of the year, it becomes clear that the federal government will not need these funds to the extent envisaged.

The Düsseldorf economist Jens Südekum reacted quickly: "Operation 'Reserve' (60 billion euros unused funds in the climate fund) will probably take place on Monday," he tweeted.

The question will not be whether an action will be taken against it, but only when and by whom.

But in his estimation, Lindner should not shy away from this legal dispute, as it was a precedent, said the economist.

"And nowhere in the law can I find stipulations in this case that loans are only permitted for direct & immediate crisis costs."

Economists and lawyers see the issue of credit authorization differently

So Südekum is leaning far out of the window.

For example, the former constitutional judge Ferdinand Kirchhof recently pointed out in this newspaper that credit authorizations created during the crisis may not simply be renamed if they were used for a specific purpose for which the debt brake allowed.

“If it is mere credit authorizations that have not yet been used, they must be used in terms of time and content according to the original authorization;

they are not available for any purpose, ”said the former Vice President of the Federal Constitutional Court.

The traffic light coalition is aware of the constitutional risks.

“We are of the opinion that this is compatible with the debt rule,” it said on Friday in government circles.

A similar path was taken last year and 27 billion euros were added to the energy and climate fund.

"This is exactly the procedure we are now using." The planned measures will support the economy.

Tax revenues are not yet at pre-crisis levels

“All of this will mean that we will get out of the pandemic-related crisis better.” In addition, tax revenues are not yet back at the pre-crisis level.

Any other action would not be in the sense of the debt rule, which supports economic behavior.

It could also not be the case that the deficit in the three-digit billion figure would fall back to the usual 0.35 percent of gross domestic product, it said.

The independent Stability Advisory Council warned against questioning the binding effect of the fiscal rules.

If the debt brake in its current constitutional form is no longer considered convincing, reforms should be discussed transparently for the public and parliaments and implemented in a legally comprehensible manner.

"The debt brake should not be undermined."

Now the scientists on the advisory board fear that this will happen.

It contradicts the intention of the debt brake to use the exception clause valid for 2020 and 2021 to finance or pre-finance non-crisis-related measures.

This guarantees considerable constitutional risks.

"Any exceeding of the regular upper limits must be justified specifically with the emergency situation and the associated unavoidable budget burdens."

The Stability Council sees the transfer of tasks as critical

In addition, the body is critical of the transfer of state tasks to public companies if this is only done with the intention of circumventing the debt brake. Regarding the red-green-yellow considerations of changing the cyclical adjustment in the debt rule, the Advisory Board points out as a precaution that “the current procedure is in line with the approach of the European fiscal rules for good reason”.

The Union is apparently willing to use the attack surface that the traffic light offers it with Lindner's first draft law.

"The justification is threadbare," said CDU budget politician Christian Haase of the FAZ. The coalition is also violating the obligation resulting from the debt brake to use leeway to repay debt.

The legality of the second supplementary budget in 2021 is therefore likely to be questioned.

"The word 'constitutional breach' is literally in the air," said Haase.