Longing for Less Interesting Times? The German Federal Constitutional Court and the Supremacy of EU Law

EU lawyers and policy-makers looking for a challenge are spoiled for choice. As if the process of managing Brexit has not been testing enough, tackling COVID 19 at Member State and EU level has raised profound questions about specific policies (for instance regarding export controls or the EU’s financial support to the contracting national economies) and the principle of solidarity, the scope and implications of which remain contested. And, as if all that had not been enough of a challenge, the German Federal Constitutional Court (BVerfG) has refused for the first time to accept the principle of supremacy of EU law by finding the ECJ’s judgment in Weiss ultra vires. The forceful responses by the Court of Justice and the President of the European Commission (“The final word on EU law is always spoken in Luxembourg. Nowhere else.”) illustrate the magnitude of the problem that is now facing the EU. As far as the ECB’s quantitative easing is concerned, that is the subject-matter of the judgment, the implications of the latter may be narrow. The ECB is not forced to abandon its quantitative easing policy, neither is the Bundesbank required to no longer participate in it. The judgment requires that information be produced in order to establish that proportionality review was carried out properly by the ECB. It is only if no such information is produced within three months that the Bundesbank should no longer participate in the programme and dispense of the bonds already acquired. Even in the context of ECB, however, the judgment will have broader policy implications. The Bank will not find the adoption of controversial decisions any easier and will have to consider carefully the reasoning accompanying them. Litigation against related ECB initiatives will by no means decrease. It is recalled that, in response to the COVID 19 crisis, the Bank has recently adopted a Pandemic Emergency Purchase Programme. While the German Court did not review that programme, its judgment is bound to raise questions about the ECB’s policy. Turning to the EU legal order as a whole, things become even more complex. The reason for rejecting supremacy, that is the application of the principle of proportionality, is in itself significant. Proportionality review is no science. It is a malleable instrument that may be used in different ways in different contexts. EU lawyers hardly need reminding, given the lively episodes to which the application of the principle has given rise over the years. Had it relied on substantive grounds, the BVerfG would have challenged directly policy choices made by the EU institutions and may have entailed a policy change. By focusing, instead, on proportionality review, the judgment gives the ECB sufficient leeway to reaffirm its original policy choice; it also provides the German Court itself with leeway when the time comes to review the practical implications of its challenge to supremacy. In other words, the judgment makes a constitutional point without necessarily impinging on the policy choices under review. (…)