The federal government is countering the complaint by the CDU/CSU MPs against the second supplementary budget for 2021. On 72 pages, their representatives Alexander Thiele (Berlin) and Joachim Wieland (Bonn) explain why, in their opinion, the Federal Constitutional Court will not be able to avoid the request of the Union politicians to be rejected as unfounded - both on the merits and on the issuance of an interim order.
In Karlsruhe, the explosive question is whether the traffic light coalition was allowed to use credit authorizations that the Bundestag had approved last year because of the Corona crisis.
Since these were not fully needed in the end, the SPD, Greens and FDP had pushed 60 billion euros into the energy and climate fund.
The traffic light has also changed the posting rule.
The debt will be increased and booked retrospectively, but at the same time the scope for spending will increase in the coming years, when the debt brake will take effect again.
CDU leader Friedrich Merz called this an inadmissible circumvention of the debt rule.
Two different types of crises
The constitutional lawyers in the service of the federal government distinguish between two types of crises: short ones, like the flood disaster in mid-July 2021 - and longer ones, like the corona pandemic.
Their conclusion is: "While the first case is primarily about reconstruction funds and regionally limited financial support, in the second case general financial expenditures that stimulate the community cannot be qualified as 'indirect' (and thus not eligible for credit financing) from the outset."
It is about overcoming the emergency situation effectively.
In this respect, it is also too sweeping to say that the exception clause in the Basic Law only covers measures that fall within the planned budget year.
This is important in the defendant case, since it is about the transfer of money to later years.
Thiele and Wieland write: It depends on the type of crisis.
"Especially where the crisis had significant negative macroeconomic effects, which should be overcome by encouraging longer-term private investment, a corresponding normative limitation would be counterproductive." In their opinion, it would also be wrong to interpret the Basic Law in such a way that the Burden on future generations will not be caused by debt service, but will be far greater in the future due to missed investments in climate protection.
The two lawyers want to give the budget legislator a lot of freedom.
The concrete weighing up of the appropriate means to ward off the exceptional emergency situation is his exclusive responsibility - after all, the Federal Constitutional Court has granted him a wide decision-making leeway.
In summary, they formulate: "Taking these standards into account, the allocation to the energy and climate fund proves to be compatible with the requirements of Article 115 paragraph 2 of the Basic Law."