scholarly journals So Long Solange? The PSPP Judgment of the German Constitutional Court and the Conflict between the German and the European ‘Popular Spirit’

2021 ◽  
pp. 1-34
Author(s):  
Peter HILPOLD
Keyword(s):  
Legal Reasoning ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
Mutual Respect ◽  
Court Of Justice ◽  
European Court ◽  
Economic Background ◽  
German Constitutional Court ◽  
The Relationship

Abstract The judgment by the German Constitutional Court (‘BVerfG’) of 5 May 2020 has caused a stir all over Europe. The relationship between the BVerfG and the European Court of Justice (‘ECJ’) has never been an easy one, especially after the Solange judgment of 1974. The Solange jurisprudence has, however, not only been synonymous with conflict and rivalry but also for dialogue and, eventually, mutual respect. With the PSPP judgment, this dialogue seemed to have found an end, while by the order of 29 April 2021 the BVerfG appears to have returned to a more conciliatory tone. Nonetheless, the disruption between Karlsruhe and Luxembourg persists. In this article, the PSPP judgment will be examined in detail, presenting it as the last step of long, contorted jurisprudence. It will be shown that the rupture that occurred in May 2020 was technically unnecessary and rather the result of deep-rooted cultural conflict with a clear economic background. The legal reasoning on both sides—that of the BVerfG and that of the PSPP judgment's most outspoken critics—is problematic at best. While for the time being the BVerfG seems to have learnt the lesson from the conflict provoked by its own judgment, the underlying, substantive conflict is still unresolved. It will be shown that this conflict can only be solved on a political level. Thereby, cultural pre-concepts will have to be overcome. Uncompromising reliance on a national ‘popular spirit’ (Volksgeist) will not offer a way out but neither will, for the time being, exclusive reference to a European Volksgeist ignoring Member State realities. The ‘weighing and balancing’ the BVerfG has missed in the previous Weiss ECJ preliminary ruling (again on the PSPP programme) will have to take place on a far broader scale.

Das „Kooperationsverhältnis“ zwischen Bundesverfassungsgericht und Europäischem Gerichtshof nach dem PSPP-Urteil

Der Staat ◽  
2021 ◽  
Vol 60 (1) ◽  
pp. 99-131
Author(s):  
Andrej Lang
Keyword(s):  
Network Structure ◽  
Third Parties ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
Cooperative Relationship ◽  
Grand Chamber

Der Beitrag diskutiert die Konsequenzen des PSPP-Urteils für das Kooperationsverhältnis zwischen dem BVerfG und dem EuGH. Dabei wird für eine nüchternere Perspektive statt martialischer Zuspitzungen und gegen einseitige Schuldzuweisungen plädiert. Vielmehr sind wechselseitige Kooperation und Konfrontation in der netzwerkartigen Struktur der Gerichtsbeziehung angelegt. Deshalb markiert das Urteil zwar eine Krise, aber noch nicht das Ende des „Kooperationsverhältnisses“. Die Vorstellung, der Gerichtskonflikt lasse sich nur durch Dritte lösen, sei es in Form eines Vertragsverletzungsverfahrens, sei es durch eine spezielle Gerichtskammer für Kompetenzkonflikte, unterschätzt die fein ausbalancierte Funktionsweise des Gerichtsdialogs und birgt ein bedenkliches Eskalationspotenzial. Der Impuls, die Wiederherstellung der europäischen Rechtseinheit trotz grundlegendem Dissens rechtlich zu erzwingen, kann den Gerichtskonflikt auch eskalieren und eine Lösung zusätzlich erschweren. The article analyzes the consequences of the PSPP ruling for the cooperative relationship between the German Constitutional Court and the European Court of Justice. It argues for a sober perspective instead of martial exaggerations and against apportioning one-sided blame. Rather, reciprocal cooperation and confrontation are inherent in the network structure of the judicial relationship. Although the ruling creates a crisis, it does not yet mark the end of the “cooperative relationship”. The idea that the judicial conflict can only be resolved by third parties, whether in the form of infringement proceedings or by a Mixed Grand Chamber for the delimitation of EU competences, underestimates the delicately balanced functioning of the judicial dialogue and harbors a worrying potential for escalation. The impulse to legally enforce the restoration of European legal unity despite fundamental dissent may end up escalating the judicial conflict and making a solution even more difficult.

scholarly journals Separation versus Fusion – or: How to Accommodate National Autonomy and the Charter? Diverging Visions of the German Constitutional Court and the European Court of Justice

2013 ◽  
Vol 9 (3) ◽  
pp. 391-419 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Counter Terrorism ◽  
Court Of Justice ◽  
European Court ◽  
Separation Thesis ◽  
National Autonomy ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
German Federal Constitutional

German Federal Constitutional Court's dialogue with the European Court of Justice – Background, trigger, contents and context of the FCC's reaction to the Åkerberg Fransson judgment – The FCC's Counter-Terrorism Database judgment – Constitutional control standards – theoretical repercussions of the judicial dispute – Underlying conceptual differences – The ‘fusion thesis’ versus the ‘separation thesis’ – Pragmatic approximation of divergent positions

Die Staatstheorie des Bundesverfassungsgerichts und Europa

2020 ◽  
Author(s):  
Robert Chr. van Ooyen
Keyword(s):  
Human Rights ◽  
State Theory ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
Eighth Edition ◽  
The Right ◽  
The Guardian

With the Treaty of Lisbon, the Second Senate of the German Constitutional Court intensified its judgements with regard to Europe and in its recent rulings on rescuing the euro and the electoral threshold in EU elections emphasised its belief in a form of democracy based on the idea that the nation and the state supersede everything else, a standpoint which it has adopted since the Treaty of Maastricht. With the right to be forgotten I and II, the First Senate has now also reacted to the European Court of Justice by suddenly committing itself to being the ‘guardian’ of European fundamental human rights and even threatening to revert to its old ‘European-friendly’ Solange II rulings. This book’s principal argument is that all this reveals the Europhobic nature of the German Constitutional Court’s state theory, which results from outdated traditions in the German doctrine of constitutional law and from a lack of democratic theory. The recent rulings on the EU’s Charter of Fundamental Human Rights from November 2019 are just some of new additions to the eighth edition of this book.

ECB, ECJ, Democracy, and the Federal Constitutional Court: Notes on the Federal Constitutional Court's Referral Order from 14 January 2014

2014 ◽  
Vol 15 (2) ◽  
pp. 147-165 ◽  
Author(s):  
Dietrich Murswiek
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
European Law ◽  
Government Bonds ◽  
European Central ◽  
Court Of Justice ◽  
European Court ◽  
Federal Constitutional

The European Central Bank's (ECB) program of purchasing government bonds, the OMT program (Outright Monetary Transactions Program), which was announced on 6 September 2012, is illegal. With this program, the ECB transgresses its powers. This is the central message of the Federal Constitutional Court's decision from 14 January 2014. However, the decision is not final. The Federal Constitutional Court has suspended the trial and has referred the matter to the European Court of Justice (ECJ) for a preliminary ruling. Only after the ECJ has examined the compatibility of the OMT program with European law will the Federal Constitutional Court pronounce its final judgment.

scholarly journals A Preliminary Ruling Instrument in the Constitutional Jurisprudence of Lithuania

Teisė ◽  
2019 ◽  
Vol 113 ◽  
pp. 80-107
Author(s):  
Paulius Griciūnas
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
Indirect Control ◽  
Court Of Justice ◽  
European Court ◽  
Similarities And Differences ◽  
The Republic ◽  
The Right ◽  
Constitutional Jurisprudence

The judicial dialogue between the Constitutional Court of the Republic of Lithuania and the European Court of Justice is analyzed in this article. The variety of opinions, arguments, and the evolution of the approaches regarding the right or obligation of the Constitutional Court to refer for a preliminary ruling are researched. Major events in the evolution were two referrals by the Constitutional Court in 2007 and 2017; both of these decisions to refer for the preliminary ruling are compared, and the similarities and differences analyzed. The potential of a preliminary ruling in the constitutional jurisprudence is demonstrated, with an emphasis on the indirect control of the legality of EU acts and the national identity clause.

After the OMT Case: The Supremacy of EU Law as the Guarantee of the Equality of the Member States

2015 ◽  
Vol 16 (4) ◽  
pp. 1003-1023 ◽  
Author(s):  
Federico Fabbrini
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Eu Law ◽  
Member States ◽  
European Central ◽  
Court Of Justice ◽  
European Court ◽  
Cherry Picking ◽  
German Constitutional Court ◽  
The Eu

This article analyzes the recent judgment of the European Court of Justice (ECJ) inGauweiler, answering the first preliminary reference ever by the German Constitutional Court (BVerfG), on the legality of the Outright Monetary Transaction (OMT) program of the European Central Bank (ECB). As the article explains, the ECJ rejected any possible claim of illegality of a key program devised by the ECB at the height of the Euro-crisis. However, because the BVerfG had defined the OMT program as ultra vires, and had threatened to strike it down if the ECJ did not reach the same result, the article defends the principle of the supremacy of European Union (EU) law, indicating that a possible nullification of the OMT program by the BVerfG would be clearly unlawful. To re-affirm the supremacy of EU law, the article argues that this principle is functional to ensure the equality of the member states before the law, preventing each country of the EU from cherry-picking which provisions of EU it likes or not. As the article suggests, respect of the principle of the supremacy of EU law – including by the BVerfG – is ultimately in the interest of every EU member state, including of Germany.

Karlsruhe Makes a Referral

2014 ◽  
Vol 15 (2) ◽  
pp. 107-110 ◽  
Author(s):  
Udo Di Fabio
Keyword(s):  
European Union ◽  
Central Bank ◽  
European Central Bank ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
European Central ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
First Time

On 7 February 2014 in the OMT Case, the German Constitutional Court in Karlsruhe referred a question about the interpretation of Treaty law to the European Court of Justice for the first time. The question was whether the European Central Bank exceeded its mandate when it declared, in September 2012, that it was prepared to make emergency, unlimited purchases of specific states' bonds. Some view the referral as a genuflection acknowledging the judicial superiority of European Union jurisprudence. Has the Karlsruhe Court relinquished its role as “the final arbiter” and thereby surreptitiously bid farewell to the German sovereignty that the same Senate of the Constitutional Court so vigorously endorsed in the Lisbon Treaty Case in 2009?

scholarly journals Economic Constitutionalism in the EU and Germany – The German Constitutional Court, the European Court of Justice and the European Central Bank between Law and Politics

2019 ◽  
Vol 12 (3) ◽  
pp. 761-795
Author(s):  
Jürgen Bröhmer
Keyword(s):  
Central Bank ◽  
European Central Bank ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Member States ◽  
European Central ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship ◽  
The Eu

Abstract The relationship between the European Union (EU) and its member states has recently been the subject of several legal proceedings in the German Federal Constitutional Court (GFCC) and the European Court of Justice. The backdrop to the underlying controversies were policies instituted by the European Central Bank (ECB) dealing with the economic and monetary situation in various member states in the context of the sovereign debt crises to influence interest rates, combat deflationary tendencies and keep inflation under but close to the ECB’s 2% inflation target. Especially so-called outright monetary transactions (OMTs) and the corresponding OMT-program and a particular high volume public sector asset purchasing program (PSPP) announced by the ECB have been controversially discussed. Legally, the controversies are about the prohibition for the ECB to finance debt held by the EU or member states (Article 123 TFEU) and about the delineation of economic policy (Article 119 et seq. TFEU), which lies in the hands of the members states, and monetary policy (Article 127 et seq. TFEU), which is exclusively in the hands of the ECB. The GFCC in its decisions propagated a restrictive approach emphasizing the role of the member states and pointing to the doctrines developed by it around ultra vires acts and so-called identity review. This paper attempts to shed some light on this controversy and argues that beyond the legal controversy lies a deeper problem of the relationship between judicial and political decision-making that the GFCC should exercise restraint in exercising its functions and remember its own doctrine of “open constitutional norms” developed in a different context but applicable here as well.

scholarly journals Encuesta sobre el TJUE como actor de constitucionalidad

2017 ◽  
pp. 13
Author(s):  
Francisco Balaguer Callejón ◽  
Rafael Bustos Gisbert ◽  
Ascensión Elvira Perales ◽  
José Martín y Pérez de Nanclares ◽  
Javier Matía Portilla ◽  
...  
Keyword(s):  
Constitutional Law ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
The European Union ◽  
Constitutional Order ◽  
Court Of Justice ◽  
European Court ◽  
Law Professors

 En esta encuesta un grupo de Catedráticos de Derecho Constitucional contestan un conjunto de preguntas sobre el rol del Tribunal de Justicia de la Unión Europea como actor de la constitucionalidad, especialmente en los casos en los que un Tribunal Constitucional nacional presenta una cuestión prejudicial ante el Tribunal de Justicia de la Unión Europea, y las consecuencias que ello trae consigo en el orden constitucional tradicionalmente vinculado al Estado nacional soberano.In this academic survey a group of Constitutional Law Professors answer some questions about the role of the European Court of Justice as a constitutional actor, especially when a national constitutional court raises a preliminary ruling before the Court of Justice of the European Union, and its consequences in the traditional constitutional order.

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