Legal Action Against Baden-Württemberg’s Acquisition of EdF Stake in EnBW?

The opposition Social Democrats (SPD) and the Greens announced to file a lawsuit with the State Constitutional Court of Baden-Württemberg in February against the acquisition of EdF’s 45.01% stake in EnBW AG by a subsidiary of the state of Baden-Württemberg, NECKARPRI GmbH.

Backed by Professors Joachim Wieland (Speyer) and Martin Morlok (Düsseldorf), who both hold chairs in public law, the opposition claims that the EnBW deal contravened budget law. The state government headed by Premier Stefan Mappus (CDU) only retroactively submitted his request for consent  to the state parliament in December. The request claimed that pursuant to Section 81 of the state constitution the parliament’s consent may be sought retroactively in the event of an unforeseen and inevitable need for action (im Falle eines unvorhersehenen und unabweisbaren Bedürfnisses). With the votes of the ruling coalition of Christian Democrats (CDU) and Liberals (FDP) the state guarantee to cover the expenses of the EnBW acquisition was approved. The opposition left the vote in protest.

The professors argue that the exemption of the parliament’s budget right in Section 81 of the state constitution has to be interpreted in a narrow fashion, and does not cover the EnBW acquisition. There was no inevitable need for action since the Finance Minister could have asked parliament whether a supplementary budget could have been passed in time. Also, there was no justification in bypassing parliament by arguing EdF had objected to a review of the deal by parliament. The parliamentary budget right existed regardless of the willingness of contractual parties to accept clauses.

Sources: Exposé Prof. WielandStaatsanzeigerStuttgarter Zeitung

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