The dispute between the European Central Bank and Germany’s Constitutional Court, part II

Two years ago a conflict arose between the European Central Bank, ECB, and the Constitutional Court of Germany, BFG (see EuroScientist, 1 June 2020). The BFG had ruled that the German Central Bank could no longer participate in the buying of government bonds by the European Central Bank, ECB, as being contrary to the German Constitution. This was despite the approval by the European Court of Justice, ECJ, of the ECB’s buying up programme after a German citizen had asked the BFG to declare it illegal. In the EuroScientist article I argued that the ECB and the German government would probably find a way around the problem in this case but that eventually Chancellor Merkel should have the courage to modify the German Constitution, despite this Constitution’s provision of the perennial role of the BFG as a guarantor against any future German military adventures: the Constitution was basically imposed by the Occupying Powers after WW II.

It has gone basically unnoticed that in August 2021 the German government in the last months under Chancellor Merkel actually has acted, not by changing the Constitution, but to the same effect.   The story is to be found in the Frankfurter Allgemeine Zeitung (Marlene Grunert and Werner Mussler, latest version 2 December 2021) which I found after an article in Dutch newspaper NRC of 10 January 2022 by Eijsbouts (prof. em. European Law) and Post (a lawyer).

The European Commission has in June 2021 given the German government written notice of default as a violation of European law, and especially two central principles, precedence of EU law above national laws and the leading role of the European Court of Justice. Both principles are part of the Treaty on the Functioning of the European Union (the formal name of the Lisbon Treaty) and all member states have signed and thus subscribed to this Treaty, without in Germany’s case objections from the BFG. In its response of August 2021 the German government implicitly acknowledged the violation, but more importantly stated that Germany fully recognizes the precedence and direct effect of European law, and the leading role of the ECJ. Moreover, Germany confirmed that the legality of actions of EU institutions can only be assessed by the ECJ, and cannot be subject of complaints to the German Constitutional Court.

In short, a gentle way of rebuffing its Constitutional Court and underscoring that actions by e.g. Poland and Hungary to let rulings of their Supreme Courts have priority over rulings of the ECJ will not be successful as far as Germany is concerned. The European Commission has withdrawn its case against Germany. It is an important step in maintaining the rules that democratically elected governments jointly have agreed for the EU.

By Peter Tindemans

Former Secretary General EuroScience.

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