Can the EU avoid further clashes with the German Constitutional Court?

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

Exterior view of the Federal Constitutional Court in Karlsruhe, Germany, 9 June 2020. [Ronald Wittek/EPA/EFE]

The row between the European Court of Justice and Germany’s Constitutional Court calls for a solution to be found to solve future clashes. José Luís da Cruz Vilaça proposes setting up an alert mechanism, similar to the one available to national parliaments.

José Luís da Cruz Vilaça is a former member of the Court of Justice of the European Union.  

The judgment of the German Federal Constitutional Court (GCC), rendered on 5 May 2020 concerning the 2.2 trillion-euro PSPP – Public Sector Purchase Programme of the European Central Bank (ECB), sent shock waves throughout Europe, even beyond the usual legal circles.  The time limit specified by the GCC for the ECB to further justify its programme, without which the Bundesbank (the German Central Bank) should cease its participation in the PSPP, expired on 5 August, without visible consequences.

In great part, this was due to the German Federal Parliament voting, on 2 July 2020, to back the ECB programme. The Bundestag expressly recognized “the ECB’s proportionality check as comprehensive”, thus fulfilling the conditions laid down by the GCC’s ruling.

Unfortunately, this will almost certainly not be the end of the story of the decade’s old disagreements between the GCC and the Court of Justice of the European Union (ECJ). Sooner or later, it will very likely emerge again. This time, as it is well known, even the authority of the ECJ itself, as the supreme interpreter of Union law, has been questioned.

The current contentious issue might have been resolved, but a lasting solution to this constitutional conundrum should be found. As a former Judge of the ECJ, having also been the first President of the now called General Court of the European Union, I reflect on it in a longer text (“The judgment of the GCC and the ECJ – judicial cooperation or dialogue of the deaf”) I take the view that the creative tension normally generated by the cross-fertilization process between the ECJ and national constitutional courts may become destructive if some red lines are transposed. And that is what happened with the GCC’s judgement of 5 May that followed the ECJ’s ruling on the legality of the PSPP programme in the so-called Weiss case. Even though the additional information provided by the ECB and the Bundesbank vote acknowledging its completeness, may have diffused the tension and saved the day for the moment, the problem did not fade away.

The GCC clearly crossed some red lines: not only it challenged the exclusive competence of the ECJ to interpret EU law and to declare, where appropriate, the invalidity of its provisions; it also unilaterally called into question the autonomy of the Union’s legal order.

Moreover, as regards the substance of its judgment, and as has been emphasised during the last months by much respected legal writers, the GCC has manifestly erred in law when assessing the proportionality of the measures taken by the ECB. When ordering the Bundesbank to no longer participate in the execution of the ECB decisions at stake, “it is impossible not to see in this assertiveness a skewed way of declaring the invalidity of an act of an EU institution for being contrary to the constitutional concepts prevailing within a given Member State, as interpreted by its Constitutional Court”.

Finally, the GCC judgment undermines the independence of the ECB and of the ESCB (European System of Central Banks) and its national components (the domestic central banks), thus jeopardising the rule of law in Europe.

The controversy is more fundamentally a matter of perceptions, cultural beliefs, and ideology. Full compliance with the rules and principles of delimitation of constitutional competences is the only real way to prevent the whole EU legal order and judicial system from being entirely disrupted.

Pragmatic “appeasement” solutions in each particular case, like the one referred above or the ECB communicating directly with the Bundesbank to show compliance with the proportionality principle, however useful they may be, represent no more than an attempt to temporarily accommodate perceptions and sensibilities, on the basis of a “political arrangement”, without paying respect for the integrity of the judicial function and to the detriment of the rule of law in the Union. The seriousness of the current situation may favour pragmatic solutions but should not work as a pretext for hiding the underlying constitutional realities and justifying any breach (even less a lasting breach) of the constitutional balance of powers and the principles that govern the whole EU legal order.

Joseph Weiler and Daniel Sarmiento proposed to set up a new appeal jurisdiction within the Court of Justice of a mixed composition, to adjudicate on disputes concerning the delimitation of competences between the member states and the Union.

My preferred solution would be different.

It could be a sort of pre-judicial dialogue Forum, kind of alert mechanism like the one available to national parliaments concerning the subsidiarity principle. “If adequately organised (…), such mechanism could play a constructive role on a preventive basis (…)”.

Though there is no urgent need, the clock is ticking and something effective and concrete may be necessary to avoid new and divisive clashes in the future. Having that in mind, I take the risk to put forward that suggestion as a contribution to further reflection.

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