The skew make-believe world of eurozone rules
by Wolfgang Münchau,
2015-07-28 06:09:52.0
WHENEVER you are in a room with European officials and discuss the euro, there is usually somebody who raises his finger and says: "This is all well and good, but it is ‘against the rules’." It then gets very quiet. "Against the rules" is a big thing in Europe. Most people do not really know what the rules are. But they do know that rules have to be followed.
The situation reminds me of a short story by Franz Kafka, Before the Law, where a man tries to seek entrance to a courthouse. A doorkeeper tells him that this is possible in principle, but not at the moment.
The man spends his entire life in front of the court waiting to be admitted. At the end of his life he is told that he could have gone through the door at any time. That man followed the wrong set of rules — rules of the mind, not of the law.
Rules of the mind are what we are dealing with in the European debate about the single currency. Many of these rules either do not exist, or they constitute some rather far-fetched interpretation of existing rules.
During the recent Greek crisis, I came across a completely new rule. I first heard it from Wolfgang Schäuble, the German finance minister. It says that countries are not allowed to default inside the eurozone. But a default is perfectly fine once they leave the euro, on the other hand.
I later read that Otmar Issing, the former chief economist of the European Central Bank (ECB), used almost exactly the same phrase as Schäuble in an Italian newspaper interview. If so many important people say it, then surely it must be true, mustn’t it?
Actually, as it turns out, there is no such rule. There is only Article 125 of the European Treaty on the Functioning of the European Union. Article 125 says that countries should not take on the debt of other countries. This is also known as the "no bail-out" clause — though that, as it turns out, is a rather loaded interpretation.
In its landmark Pringle ruling — relating to an Irish case in 2012 — the European Court of Justice said bail-outs were fine as long as the purpose of the bail-out was to render the fiscal position of the recipient country sustainable in the long run.
In a landmark ruling last month, the court supported Mario Draghi’s promise to do whatever it takes to help a country subject to a speculative attack. The ECB president’s pledge had previously been challenged by the German constitutional court. In both cases, the court did not support the predominant German legal interpretation.
So what then can we infer from the previous court rulings in the absence of an explicit ruling from the court on debt relief? An article by three authors from Bruegel, a European think-tank, concludes that debt relief is almost certainly consistent with current law.
The argument goes as follows: in the Pringle case, the court gave the go-ahead for bail-outs in principle as long as they were intended to stabilise public finances. In the ruling on the ECB’s backstop, the court accepted the principle that the ECB could incur a loss on its asset purchases, as long as the bank follows its own mandate.
Add the two together, and you have debt relief. I am not sure whether the European Court of Justice would follow this argument if this ever came to court. It would probably impose some constraints.
Why do Germany and the court disagree so much? The overt reason is that European law on monetary union is internally inconsistent, and thus open to different interpretation. It neither allows an exit, a default nor a bail-out, and has therefore no clear procedure in the event of a financial crisis. The German view is that the "no bail-out" clause is the strongest of them all and must take precedence. Others disagree.
In addition, German constitutional lawyers do not allow economic considerations to enter their arguments, while the justices at the court of justice do. At a deeper level, the disagreement is not about the law, but about politics and economics. The new "no-default" rule is a political aspiration dressed up as legal constraint.
What is really happening is that Germany does not want to grant Greece debt relief for political reasons, and is using European law as a pretext. Likewise, when Schäuble proposes a Greek exit from the euro, ask yourself what rule that is consistent with. The fact is that they are making up the rules as they go along to suit their own political purposes.
© The Financial Times Limited 2015
German Finance Minister Wolfgang Schäuble. Picture: AFP PHOTO/THIERRY CHARLIER
WHENEVER you are in a room with European officials and discuss the euro, there is usually somebody who raises his finger and says: "This is all well and good, but it is ‘against the rules’." It then gets very quiet. "Against the rules" is a big thing in Europe. Most people do not really know what the rules are. But they do know that rules have to be followed.
The situation reminds me of a short story by Franz Kafka, Before the Law, where a man tries to seek entrance to a courthouse. A doorkeeper tells him that this is possible in principle, but not at the moment.
The man spends his entire life in front of the court waiting to be admitted. At the end of his life he is told that he could have gone through the door at any time. That man followed the wrong set of rules — rules of the mind, not of the law.
Rules of the mind are what we are dealing with in the European debate about the single currency. Many of these rules either do not exist, or they constitute some rather far-fetched interpretation of existing rules.
During the recent Greek crisis, I came across a completely new rule. I first heard it from Wolfgang Schäuble, the German finance minister. It says that countries are not allowed to default inside the eurozone. But a default is perfectly fine once they leave the euro, on the other hand.
I later read that Otmar Issing, the former chief economist of the European Central Bank (ECB), used almost exactly the same phrase as Schäuble in an Italian newspaper interview. If so many important people say it, then surely it must be true, mustn’t it?
Actually, as it turns out, there is no such rule. There is only Article 125 of the European Treaty on the Functioning of the European Union. Article 125 says that countries should not take on the debt of other countries. This is also known as the "no bail-out" clause — though that, as it turns out, is a rather loaded interpretation.
In its landmark Pringle ruling — relating to an Irish case in 2012 — the European Court of Justice said bail-outs were fine as long as the purpose of the bail-out was to render the fiscal position of the recipient country sustainable in the long run.
In a landmark ruling last month, the court supported Mario Draghi’s promise to do whatever it takes to help a country subject to a speculative attack. The ECB president’s pledge had previously been challenged by the German constitutional court. In both cases, the court did not support the predominant German legal interpretation.
So what then can we infer from the previous court rulings in the absence of an explicit ruling from the court on debt relief? An article by three authors from Bruegel, a European think-tank, concludes that debt relief is almost certainly consistent with current law.
The argument goes as follows: in the Pringle case, the court gave the go-ahead for bail-outs in principle as long as they were intended to stabilise public finances. In the ruling on the ECB’s backstop, the court accepted the principle that the ECB could incur a loss on its asset purchases, as long as the bank follows its own mandate.
Add the two together, and you have debt relief. I am not sure whether the European Court of Justice would follow this argument if this ever came to court. It would probably impose some constraints.
Why do Germany and the court disagree so much? The overt reason is that European law on monetary union is internally inconsistent, and thus open to different interpretation. It neither allows an exit, a default nor a bail-out, and has therefore no clear procedure in the event of a financial crisis. The German view is that the "no bail-out" clause is the strongest of them all and must take precedence. Others disagree.
In addition, German constitutional lawyers do not allow economic considerations to enter their arguments, while the justices at the court of justice do. At a deeper level, the disagreement is not about the law, but about politics and economics. The new "no-default" rule is a political aspiration dressed up as legal constraint.
What is really happening is that Germany does not want to grant Greece debt relief for political reasons, and is using European law as a pretext. Likewise, when Schäuble proposes a Greek exit from the euro, ask yourself what rule that is consistent with. The fact is that they are making up the rules as they go along to suit their own political purposes.
© The Financial Times Limited 2015
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