EU proceedings against Germany? The damage is long overdue

With its decision on the purchase of ECB bonds, the Federal Constitutional Court opposed the highest court in the EU. The Polish government applauds, experts warn of the devastating consequences.

The SPD’s European policy, Katarina Barley, calls it a fatal sign. European lawyer Franz Mayer talks about an “atomic bomb” that was detonated by the Federal Constitutional Court. In their judgment on purchases of billions of dollars of government bonds by the European Central Bank (ECB), the Karlsruhe judges for the first time ignored a decision of the Court of Justice of the European Communities (ECJ) and therefore , they sent shock waves into Europe. Is the authority of the EU’s highest court crumbling, at a time when the European Union is increasingly struggling with nationalism? The head of the EU Commission, Ursula von der Leyen, is alarmed.

European SPD policy Katarina Barley described the ECB’s ruling by the Federal Constitutional Court as a “wrong signal”. (Source: imago images)

German judges may have predicted the earthquake. On May 5, the president of the court, Andreas Voßkuhle, said the verdict could “be irritating at first sight.” The Senate is aware that “the CJEU’s decisions can only be denied in exceptional cases.”

They had to fear contradictions

The conflict is in the nature of things: on the one hand, the powerful Federal Constitutional Court in Karlsruhe, which watches over German fundamental rights. On the other hand, the highest EU court in Luxembourg, which interprets European treaties and therefore holds the Union together. What if that leads to contradictions?

Karlsruhe has tended to withdraw more and more since the 1970s. With two exceptions: judges reserve the right to intervene if the innermost core of the Basic Law is violated. And when an EU body draws powers that the Bundestag, as a representative of the electorate, has never given it.

The ECB has tested the second point with its controversial anti-crisis policy for years. In 2014, German judges presented their concerns to the ECJ for the first time. It gives the green light to the ECB. 2017: Meanwhile, the central bank has invested many billions in government bonds, Karlsruhe’s second advance in Luxembourg. But it takes the CJEU a year and a half to bless the purchase program.

It was feared that the German judges would not be offered this. They put aside the ECJ ruling as “objectively arbitrary” and “methodologically no longer justifiable” and decide for themselves that the central bank has exceeded its monetary policy mandate, an unprecedented process.

The situation is “highly dangerous”

“I am concerned that the ruling may have a negative impact on the future and cohesion of the European Union,” former Federal Justice Minister Barley told the “Passauer Neue Presse” (Saturday). The decisions of the CJEU must be respected by the national courts. European lawyer Mayer from Bielefeld University considers the situation to be “extremely dangerous”. He sees the Karlsruhe judge’s decision as an attack on the ECJ colleagues.

European lawyer Franz Mayer sees the danger that countries like Poland feel strengthened in their course through the ruling of the Federal Constitutional Court. (Source: imago images)

These can take several days with a content reaction. On Friday, however, they become unusually clear. In principle, the following applies: “The Court services do not comment on judgments of national courts.” “In general”, the CJEU clarifies that such judgments endanger the EU judicial system. A preliminary ruling is binding on the national court. Only the ECJ can determine that the act of an EU institution, in this case the ECB, violates EU law. Otherwise, the unity of EU law and legal certainty would be at risk.

But the damage has already been done. “Corks explode in Poland,” says European lawyer Mayer. PiS’s national conservative government has been restructuring the judiciary in the country for years. The ECJ intervened several times and found that some of the reforms violated EU law. PiS naturally feels confirmed by the German trial, Mayer says. “They can hardly believe their luck.” The government will refer to the Federal Constitutional Court in the future and will allege that the ECJ sentences are not binding.

A decisive reaction is expected

In fact, the verdict is received almost euphorically by the Warsaw government. Polish Prime Minister Mateusz Morawiecki writes in the “Frankfurter Allgemeine Sonntagszeitung” (FAS) about “one of the most important trials in the history of the European Union”. Perhaps now it was said for the first time with this clarity: “Treaties are created by the Member States and determine where the limits of competition lie for the EU institutions.”

Mateusz Morawieck: The Polish head of government has praised the Federal Constitutional Court for his controversial judgment on the European Central Bank. (Source: dpa)

So what happens if Poland, Hungary or other countries take Germany as an example and the ECJ rulings are no longer followed in the future? For Mayer, that would scratch the core of the international community. Common law is crucial for the cohesion of the EU. “The European Community is just a legal community. And the ECJ is an expression of this common law.”

Therefore, a decisive reaction is important, says Mayer. “From the point of view of European law, you cannot offer him that.” The EU Commission had to initiate infringement proceedings against Germany for failing to comply with the ECJ judgment and perhaps also for violating the independence of the ECB.

“The last word on EU law”

The Brussels authorities regularly initiate such procedures if they consider a country to be in breach of EU law. First, written attempts are made to clarify the differences. If a country does not yield, the EU Commission can sue the country before the ECJ. If the court confirms the violation, the EU Commission can request financial sanctions against the country.

Is that really conceivable? The head of the EU Commission, Ursula von der Leyen, is resolved in a letter addressed to the European green politician Sven Giegold. “I take it very seriously,” he says in the letter to the German Press Agency. The judge’s decision raised questions that touched the core of European sovereignty. The Commission is currently analyzing the judgment and is also considering infringement procedures against Germany.

“The last word on EU law always has the Court of Justice of the European Communities in Luxembourg,” writes von der Leyen. The EU is a community of values ​​and laws that the EU Commission will uphold and uphold at all times. “That is what holds us together.”