What Germany Should Do About the EU Commission Illegal Power Grab

There are reports that German Economy Minister Gabriel is using the illegal EU Commission power grab to speed up his reform of the Law on Priority for Renewable Energy.

This proposal has been debated at the Bundesrat, where the Green party opposition has more influence than in the Bundestag. There have been substantial requests for amending the proposal.

Now Gabriel seems to be using the EU Commission as a threat to rush the Bundesrat, and to decline all those requests without even discussing them. He says that he needs to close the debate until the first week of June. If that is not possible, the reduced surcharge rates for German industry will stop in January 2015, leading to around 5 billion euro in extra industry costs, according to Gabriel. And he already notified the proposal to the EU Commission, without waiting for Parliament to actually adopt it.

The Green Party is not amused about this. Neither am I.

I note that the EU Commission illegal power grab is already resulting in serious damage to the German democratic process. If Gabriel gets his way, the Constitutional rights of the Bundesrat will be massively curtailed.

I won’t discuss in detail why the EU Commission’s meddling in German legislation is illegal and not compatible with basic values of democracy, having done so extensively in other posts.

I think a German minister has no business whatsoever to yield to any pressure of the Commission in this matter. What Germany should do instead is:

Tell the Commission to go ahead and try to burden German industry with those extra 5 billion in costs.

Then, when the Commission adopts such a decision, for starters send someone else next time. Oettinger’s possible second term should be dead the moment he supports sabotaging the German industry and basic values of democracy in this way.

Also, as long as the Commission chooses to declare war on the German industry, make it clear that there will be zero German funds coming in the future to support other Member States with financial difficulties. With German industry burdened by illegal extra costs from the Commission, Germany just can’t afford the luxury to bail out other Member States for their irresponsible fiscal policies.

And while they’re at it, make it an official policy of the German government to vote against every single proposal in the Council (even those that Germany has previously supported) as long as this illegal power grab is going on.

And start a serious discussion about Germany leaving the EU, a right the Treaty of Lisbon expressly reserves.

While some of the above measures might be slightly overreacting, for the very least Germany should fight this out at the European Court of Justice. Just ignore whatever the Commission decides on the matter. Legislate on renewable energy policy in the usual process, taking the usual amount of time, without paying attention to what the Commission wants or does not want, which is what should happen in a case where the Commission is clearly acting ultra vires.

Then, if the Commission tries to enforce their illegal power grab by suing Germany at the Court of Justice, win the case there, just as Germany won and the Commission lost the PreussenElektra case. That would have the added benefit of preventing future similar illegal power grabs by the Commission.

Published by kflenz

Professor at Aoyama Gakuin University, Tokyo. Author of Lenz Blog (since 2003, lenzblog.com).

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