How to solve the dispute between the European Court of Justice and the German Constitutional Court?

The German Constitutional Court (Bundsverfassungsgericht) has recently expressed itself on the buying up of bonds by the European Central Bank (ECB). It has decided that the German Bundes Bank can no longer participate in such a measure unless the European Court of Justice (ECJ) explains why this is justified.

This issue of course has no direct bearing on science, but it is very fundamental for the process of European integration, or call it collaboration. Since science is a core building block and beneficiary of European collaboration its future depends, too, on how to deal with this conflict. Because a conflict it is.

The ECJ has very correctly responded that there can only be one supreme court in a jurisdiction. And the ECJ is the highest court for the European institutions and all the areas where Member States have transferred authority to the EU. No national court can instruct the ECJ to even give explanations.

In its decision the Bundesverfassungsgericht (BVG) in Karlsruhe questions the legal basis for the ECB to issue such bonds, even though the ECJ has approved them, and claims that it can force the German National Bank (the Bundesbank) to no longer take part in a future ECB programme of buying up bonds (this is in Germany what the BVG legally can do), thereby posing an almost insoluble problem to the German government. The BCG can do this because of the special constitution of what was West-Germany, a constitution which was to a large degree imposed upon West-Germany by the Allies of the 2nd World War, the US, Soviet Union, UK and France, and which made the BVG into an eternal institution never to be abandoned and in a way superior to the West-German government.

The inconsistency of the BVG’s judgment should be clear to everyone: the BVG has accepted the Maastricht Treaty of 1992 on the condition that the future ECB should be fully independent.  Yet, legally in Germany, there is a problem if the BVG wants to play it up, which they occasionally want to do. One might respond, as happened in the past, the dog just barks but doesn’t bite.

But I think we should end this perennial taking hostage of European integration/collaboration by more fundamental means. Germany should decide to modify its constitution by eliminating this sort of conflict.

What would the Allies of WW II say? Here one can only say: we need a new 1989. The German unification needed intense discussions of Bundeskanzler Kohl with the Soviet Union, US, Britain and France. True, the international situation is very different. Kohl got the agreement of Gorbachov and Bush sr., which made the hesitations of Thatcher and Mitterand less important. Putin and Trump have no such interest; they just want to inflict as much damage to the EU as possible. So they might not agree to a modification of the German constitution.

The answer of Germany, fully backed by the EU, should simply be: then we go it alone. A government and a Parliament of a sovereign country can modify their constitution within the procedural limits they have set. There will be no war of the US and Russia against Germany, and the BVG may make much noises, but that will be it. Merkel should in the end become a second Kohl.

By Peter Tindemans
Former Secretary General of EuroScience

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