A couple of weeks ago I took part in the Frankfurter Allgemeine Zeitung’s Tendenzwende conference – a small gathering in Berlin of historians, economists, constitutional lawyers and philosophers, that has been held annually since 2009. It is named after a famous academic conference held in 1974, which coined the term that is often used in Germany for the shift in the 1970s from the post-war settlement to a new phase of slow growth and high inflation after the oil shock of 1973. After the financial crisis in 2008, Andreas Rödder (a historian) and Günther Nonnenmacher (one of the five publishers of the Frankfurter Allgemeine) had the idea of holding a similar conference to discuss whether a new paradigm shift was now taking place. The big question was: what comes after neo-liberalism? This year’s conference (which took place under the Chatham House rule) was on Europe.
What struck me above all at the conference was how Eurosceptic the participants – members of Germany’s intellectual elite – were. Since the euro crisis began, there has been a consensus of the mainstream political parties that “more Europe” is the solution. But Eurosceptic voices have been gradually getting louder: the Alternative für Deutschland, or Alternative for Germany, won nearly 5 percent of the vote in the election in September. Listening to the Euroscepticism of these Germans (I was the only non-German there) was both reassuring and alarming: reassuring because it showed there was a real, sophisticated debate in Germany about Europe (perhaps the most sophisticated of any EU member state); alarming because it is hard to see a way out of the crisis if even Germans are opposed to further integration.
I had been aware of the increasing euroscepticism in the economic debate in Germany about the euro – not least from the economics section of the Frankfurter Allgemeine itself. Many Germans are increasingly worried by what they see as a creeping debt mutualisation in the eurozone – in particular since European Central Bank President Mario Draghi’s announcement of the Outright Monetary Transactions programme. In June 2012 the German constitutional court ruled that unlimited debt mutualisation, for example in the form of Eurobonds, would be unconstitutional and Merkel famously promised there would be no Eurobonds in her lifetime. In the new coalition agreement published last week, the Christian Democrats and the Social Democrats declared that “any form of mutualisation of sovereign debt threatens the necessary economic policies in member states” (my emphasis). In short, Germans want to go no further in terms of debt mutualisation.
However, there is also a parallel legal debate about Europe, with which I was less familiar. Several of the participants at the Tendenzwende conference were constitutional lawyers, including Udo di Fabio, the reporting judge in the constitutional court’s 2009 ruling on the Lisbon Treaty, which set limits to further integration. Several of them expressed anger and frustration at what they perceived as the casual way in which pro-Europeans in Germany were prepared to cast aside fundamental legal principles. In fact, they see in the steps in European integration that have been taken since the crisis a partial reversal of the progress that has been made in Europe over hundreds of years towards democracy and the rule of law. One of the participants even said that further European integration without a referendum would amount to “ein Staatsstreich von oben” – “a coup d’état from above”.
What particularly struck me about these legal arguments was the way that they were informed by the Nazi past. It was clear that several of the participants, mostly from the centre right, who expressed concerns about European integration from a legal standpoint had at the back of their minds the way that the Nazis had abused the law. In particular, I had the feeling that the ghost of Carl Schmitt, the so-called crown jurist of the Third Reich, was in the room. One of the participants reminded me of Schmitt’s notorious declaration after the Night of the Long Knives in 1934 that “the Führer protects the law” to illustrate the dangers of abusing the rule of law in the name of political expediency. It is easy to dismiss these arguments as expressions of a typically German legalism or even fetishisation of the law. But it seems to me that Germans have good reasons to be legalistic.
I found it refreshing to hear the conference participants question widely held assumptions in Germany about European integration. They recognised the flawed architecture of the single currency rather than simply blaming fiscally irresponsible eurozone countries for the crisis. They worry about how Merkel’s approach to the crisis is creating anti-German feeling in the rest of Europe and some such as Rödder and Dominik Geppert (another historian) even see alarming parallels with the pre-1945 German question. They are uncomfortable with the idea of reshaping Europe in Germany’s image. What was missing, however, was any sense of German responsibility for the euro crisis or any idea of how to get out of it. Many of the Eurosceptic arguments echoed British concerns about the EU. But Germany, unlike the UK, chose to join the single currency. Some Germans may now be starting to think that in retrospect it was a mistake. But they cannot simply wish it away.