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The constitutional judges’ decision is an “attack on the EU as a legally constituted community of European Democrats,” says a senior judge at the Federal Court of Justice. The great scolding of a colleague is extremely exceptional. But there are also moderate voices.
From the point of view of the Federal Constitutional Court in Karlsruhe, the ECJ’s decision on purchases of ECB bonds “is no longer understandable.”
The surprising judgment of the Federal Constitutional Court (BVerfG) last week, according to which the European Central Bank (ECB) bond purchases are partly unconstitutional, apparently also divides German judges. As part of the ruling, constitutional judges for the first time in German history also identified an ultra-viral act that affected not only the ECB but also the Court of Justice of the European Union (ECJ), which the constitutional judges themselves had previously consulted. An ultra-viral act occurs when the EU authorities take care of things with which they have not been commissioned. From Karlsruhe’s perspective, the ECJ’s decision on the ECB’s bond purchases was “absolutely incomprehensible”. Constitutional judges in particular overlooked a proportionality test by the ECJ. The Luxembourg judges, like the German constitutional judges, had asked the ECB for the measures to be proportionate, but had not analyzed them.
Karlsruhe “Attack on the EU”
A presiding judge of the Federal Court of Justice (BGH), Peter Meier-Beck, has now responded to the judgment of constitutional judges with clear criticism. The ruling caused “horror” for him and the decision was an “attack on the EU as a legally constituted community of European democracies,” the lawyer wrote in a guest article for the Heinrich Heine University antitrust blog in Düsseldorf. It is a very unusual process for a high ranking BGH judge to comment on a judgment of high ranking colleagues, and this in such a clear way. Meier-Beck is the longest serving president of the BGH and an honorary professor at Heinrich Heine University. However, he himself specializes in civil and antitrust law. A curriculum vitae does not show a closer connection with constitutional or European law.
The BGH, also based in Karlsruhe, is the highest court in Germany for civil and criminal law matters, that is, the so-called ordinary jurisdiction. The Federal Constitutional Court is the highest German court and guardian of the Basic Law. Their decisions cannot be questioned by anyone. Meier-Beck accuses his colleagues of failing to provide any reason for his decision. Rather, the constitutional court noted what it considered a strange limit of jurisdiction for both the powers of the ECB and the law of the ECJ. He found the wording of the Karlsruhe judges against colleagues in the Luxembourg ECJ “shameless and almost inappropriate.” Furthermore, Judge BGH fears that the sentence will be particularly welcomed by governments that are currently dismantling the rule of law in their countries. At least the latter is relatively indisputable.
Constitutional judges open sharp weapons
The Federal Constitutional Court had launched sharp weapons against the ECJ. In assessing the proportionality of the ECB’s measures, the Luxembourg judges did not take into account the actual effects and declined to make a general assessment. This does not meet the requirements for a verifiable review of compliance with the ECB’s monetary mandate. Furthermore, constitutional judges were greatly disturbed by the fact that complete concealment of all economic policy implications also contradicts the court’s methodological approach, which would otherwise be pursued in almost all areas of EU law. . With its behavior, the ECJ is helping to override the principle of limited individual authorization. According to this principle, the EU institutions can only adopt legal rules if they are expressly authorized by the European Treaties. In other words, the EU should not acquire competences by itself because it does not have the so-called “competency of competences”.
But there are also more balanced responses to Karlsruhe’s judgment. Constitutional judges’ concerns must be taken seriously as the broad discretionary powers of the ECB plus restrictive judicial control taken together represent the risk of the central bank’s right of self-determination, writes Armin Steinbach on the website under the title ” Ultra difficult “Constitutional blog. Steinbach is head of the economic policy unit of the Federal Ministry of Economy and professor at the universities of Bonn and Oxford, and has also dealt with European and constitutional law.
No political sign of the trial?
Steinbach writes that the decision made Karlsruhe judges uncomfortable with many trials. Criticism of the ECB’s unconventional policy has long been raised. The constitutional court had been concerned about the tension between central bank independence and democracy for years. Steinbach, who was economic policy adviser to today’s Federal President Frank-Walter Steinmeier (SPD) in 2012/13, does not want to read any political signs at the trial, unlike many commentators, because the ultra-viral double indictment against the ECJ and the ECB essentially turns comparatively trivial and unspectacular on a clean proportionality check.
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