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IS THIS COMPLETELY M.A.D.?
THE RULING OF THE GERMAN FCC ON 5TH MAY 2020
By Annegret Engel, Xavier Groussot and Julian Nowag
On 5th May 2020, the Bundesverfassungsgericht (BVerfG) in Germany, ie the German Federal
Constitutional Court (FCC), has delivered a landmark ruling1 of constitutional significance with
implications not only for the specific policy areas concerned, but also in the wider context of Member States’
cooperation in the EU and European integration as a whole. We argue that the judicial turmoil it creates
can only be remedied by much needed treaty changes in the longer term in order to avoid the Mutually
Assured Destruction (M.A.D.).
1
BACKGROUND TO THE CASE
The judgment concerns the Public Sector Purchase Programme (PSPP) under which the European
Central Bank (ECB) was able to purchase assets on the secondary markets with the aim to achieve
market neutrality by providing securities for the rescue of the Eurozone in the aftermath of the
economic crisis. The ECB’s decisions2 to launch the PSPP were subsequently challenged before
1
BVerfG, Judgment of the Second Senate of 05 May 2020, 2 BvR 859/15, 2 BvR 1651/15, 2 BvR 2006/15, 2
BvR980/16.
2 Decision of the Governing Council of the European Central Bank of 22 January 2015 and Decision (EU) 2015/774
of the European Central Bank of 4 March 2015 (ECB/2015/10) on a secondary markets public sector asset purchase
programme, in conjunction with Decision (EU) 2015/2101 of the European Central Bank of 3 September/5
November 2015 (ECB/2015/33) amending Decision (EU) 2015/774 (ECB/2015/10) on a secondary markets public
sector asset purchase programme (ECB/2015/10), Decision (EU) 2015/2464 of the European Central Bank of 3
December/16 December 2015 (ECB 2015/48) amending Decision (EU) 2015/774 (ECB/2015/10) on a secondary
markets public sector asset purchase programme, Decision (EU) 2016/702 of the European Central Bank of 10
March/18 April 2016 (ECB/2016/8) amending Decision (EU) 2015/774 (ECB/2015/10) on a secondary markets
public sector asset purchase programme, and Decision (EU) 2017/100 of the European Central Bank of 8 December
2016/11 January 2017 (ECB/2017/1) amending Decision (EU) 2015/744 (ECB/2015/10) on a secondary markets
public sector asset purchase programme.
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the German FCC as ultra vires,3 claiming that the German state having failed to challenge the ECB’s
action in accordance with the German Basic Law (Grundgesetz – GG).4
The main issue is the distinction between monetary and economic policies under EU
law, with the claimants arguing that the PSPP programme exceeds the EU’s exclusive competences
under the monetary policy area and thus encroaching upon the Member States’ coordinating
competence under the economic policy area, thereby infringing the principle of conferred powers
(Article 5 TEU). By Order of 18 July 2017, a preliminary reference was made by the German FCC
to the Court of Justice of the European Union (Court of Justice) questioning the validity of the
ECB’s measures and asking for clarification on the division of competences between the EU and
the Member States.
In its Weiss judgment,5 the Court of Justice upheld the contested decisions as being
compatible with the EU’s objectives under the monetary policy without infringing the prohibition
of monetary financing (Article 123 TFEU) or Member States’ sovereignty in budget matters. In
particular, the Court of Justice relied in its judgment on the evidence provided by the ECB, mainly
focusing on the (monetary) objectives of the measures in question rather than their (economic)
effects. When the case thus came back, the German FCC heavily criticised this methodology6 and
rejected the Court of Justice’s ruling as “incomprehensible”.7
While criticism from a national court, in particular the German FCC, is not unprecedented,8
the timing and the rigorousness of the decision are certainly remarkable. The discrepancies in the
interpretation and application of EU law with regards to the principle of conferred powers and the
principle of proportionality9 have culminated in a dissenting judgment from the national court
without much room for dialogue.10 In a Statement by the President of the Commission Ursula von
der Leyen, the German FCC’s decision was said to be in contempt of the principle of primacy of
3
BVerfG, Judgment of the Second Senate of 05 May 2020, 2 BvR 859/15, para 112.
Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) and Art. 79(3) GG.
5 Case C-493/17, Weiss and Others, EU:C:2018:1000.
6 BVerfG, Judgment of the Second Senate of 05 May 2020, 2 BvR 859/15, para 141.
7 ibid, para 153.
8 See eg the Solange saga.
9 BVerfG, Judgment of the Second Senate of 05 May 2020, 2 BvR 859/15, paras 125 and 126.
10 See also Dimitrios Kyriazis “The PSPP judgment of the German Constitutional Court: An Abrupt Pause to an
Intricate Judicial Tango”, (2020) European Law Blog, https://europeanlawblog.eu/2020/05/06/the-pspp-judgmentof-the-german-constitutional-court-an-abrupt-pause-to-an-intricate-judicial-tango/ (accessed 14 June 2020).
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EU law and the binding nature of Court of Justice’s rulings, reserving the option of infringement
proceedings in accordance with Article 258 TFEU.11
2
THE CONUNDRUM OF THE CORRECT CHOICE OF LEGAL BASIS:
DELIMITING EU COMPETENCES UNDER THE MONETARY AND
ECONOMIC POLICY AREAS
As a general rule, the Union has no genuine powers itself but derives all its competences to legislate
in a specific area from the Member States who have given up some of their sovereign rights by
having transferred them to the EU. This principle of conferred powers is enshrined in Article 5
TEU. Any competences not conferred on the EU remain with the Member States, which are thus
the ultimate guardians of the treaties, also referred to as Kompetenz-Kompetenz. Therefore, a clear
delimitation between different types of competences is an essential prerequisite for the
determination of the legitimate actor(s) to be involved in the legislative process,12 since the reliance
on an incorrect legal basis and thus a wrongfully taken action would render any such measure
adopted thereon invalid.
From a purely normative perspective, the conflict between the EU’s monetary and
economic policies derives from the different categorisation of competences introduced by the
Treaty of Lisbon,13 which classifies the former as an exclusive competence14 of the Union according
to Article 3(1)(c) TFEU, whereas the latter remains under the Member States’ coordinating
competence15 according to Article 5(1) TFEU. Both policy areas can be found under the same Title
VIII of Part Three TFEU, although specific provisions refer to the economic policy under Chapter
1 and the monetary policy under Chapter 2. According to Article 119 TFEU, the primary objective
of the Union’s monetary policy is the maintenance of price stability,16 whereas the economic policy
11
Statement
from
10
May
2020,
European
Commission,
https://ec.europa.eu/commission/presscorner/detail/en/statement_20_846 (accessed 10 June 2020).
12 An institution’s subjective interpretation of the delimitation of competences has often led to arbitrary decisions and
created inter-institutional conflicts, see Holly Cullen and Andrew Charlesworth, “Diplomacy by other Means: The Use
of Legal Basis Litigation as a Political Strategy by the European Parliament and Member States”, (1999) 36(6) CMLRev.
1243-1270.
13 Before the introduction of the Lisbon Treaty, there was no clear set of competences in the treaties; the scope of
each policy area was defined individually in the respective treaty provision which were thus subject to a constant shift
and re-interpretation by the courts in favour of the acquis communautaire.
14 According to Art. 2(1) TFEU, only the Union is allowed to legislate and adopt legally binding acts under the exclusive
competences, with Member States’ actions being allowed only when empowered to do so or for the implementation
of Union acts.
15 According to Art. 2(3) TFEU, the Union has the power to provide the arrangements necessary for Member States’
coordination as determined by the Treaty.
16 Art. 119(2) TFEU.
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is merely defined as based on Member States’ close cooperation, the internal market and common
objectives.17 The delimitation between those two competences becomes even more obscured
considering the explicit prohibition of monetary finance enshrined in Article 123 TFEU.
As a result of this unfortunate constitutional setup and artificial distinction between two
concurrent policy areas, it seems unsurprising that such a conflict would reach the judiciary sooner
rather than later. Indeed, legal basis litigation can be traced back a long time in the Court of Justice’s
history. In the quest for the correct choice of legal basis in the case of overlapping competences,
the European courts have developed general criteria of legal basis litigation, most notably the
‘centre of gravity’ theory.18 Thus, the Court of Justice usually focusses on the main aim or objective
of a measure and disregarding any incidental or ancillary effects.19 While this rather objective-driven
approach has been criticised occasionally,20 the ‘centre of gravity’ theory has been a useful tool in
legal basis litigation and provided at least some degree of legal certainty when determining the
correct legal basis.21 The inevitable judicial review of the delimitation between monetary and
economic policies may have thus sparked hopes for clarification, hence the reason for the German
FCC’s question to the Court of Justice. However, the recent attempts to delimit these two areas of
competence have unfortunately added more to the confusion than contributed to its diminishment.
2.1
CONFLICTING VIEWS BETWEEN THE GERMAN FCC AND THE COURT OF
JUSTICE
Applying the ‘centre of gravity’ theory in its Weiss ruling, the Court of Justice thus predominantly
focussed on the main objective of the contested measures. Unsurprisingly from an EU law
perspective, the Court of Justice found this to be in line with the primary objective of maintaining
price stability under the EU’s monetary policy, while disregarding any indirect effects:
17
Art. 119(1) TFEU.
This was established in Case C-300/89, Commission of the European Communities v Council of the European Communities
(Titanium Dioxide), EU:C:1991:244, para 10, where the court held that the objective factors of a measure include in
particular the aim and content of a measure.
19 This was first established in Case C-70/88, European Parliament v Council of the European Communities, EU:C:1991:373,
para 12.
20 See eg Marise Cremona, ‘External Relations of the EU and the Member States: Competence, Mixed Agreements,
International Responsibility, and Effects of International Law’, (2006) EUI WP LAW 2006/22.
21 An extensive discussion of the development of the ‘centre of gravity’ theory as well as other general criteria of legal
basis litigation can be found in Annegret Engel, The Choice of Legal Basis for Acts of the European Union: Competence Overlaps,
Institutional Preferences, and Legal Basis Litigation (Springer 2018).
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a monetary policy measure cannot be treated as equivalent to an economic policy measure
for the sole reason that it may have indirect effects that can also be sought in the context
of economic policy22
Despite acknowledging the rather vague nature of the definition of monetary policy
objective in the treaties, the Court of Justice nevertheless interpreted the ECB’s evidence sufficient
to justify the use of the Union’s competences. The Court’s analysis itself contributes little to further
clarify the delimitation of the Union’s monetary policy from economic policies. Echoing its
previous reasoning in Pringle23 and Gauweiler,24 the Court of Justice merely states that economic
effects are inevitable, adding that the ECB would be precluded from adopting such measures, thus
rendering the monetary policy provisions obsolete, if it had come to a different decision.25
But does this reasoning of effet utile really help in disentangling the overlap between the two
policy areas? Arguably not.26 In fact, this could very well be turned on its head, asking the question
the other way around: would it not render any economic policy provisions obsolete if we do not
take into account such economic effects? This is then the perspective of the national court, the
German FCC, which considers the Court of Justice’s ruling “untenable”27 and an encroachment
upon its sovereign rights as part of the gradual “competence creep” in the Union,28 a “structurally
significant shift in the order of competences to the detriment of Member States.29 Disregarding the
principle of conferred powers, this would consequently allow the ECB to gradually expand its own
powers “in a manner that is not necessarily noticeable from the outset”.30 In turn, however, the
German FCC’s judgment calls into question the authority of the Court of Justice in the
interpretation of EU law according to Article 19 TEU and the principle of supremacy when applied
in the national context.31
22
Case C-493/17, Weiss and Others, EU:C:2018:1000, para 61.
Case C-370/12, Thomas Pringle v Government of Ireland, EU:C:2012:756.
24 Case C-62/14, Gauweiler and Others, EU:C:2015:400.
25 Case C-493/17, Weiss and Others, EU:C:2018:1000, paras 63-67.
26 See already with regards to the distinction made in the Pringle case which was criticised as mere “legal formalism”,
Paul Craig, ‘Pringle: Legal Reasoning, Purpose and Teleology’, (2013) MJECL 20(1), 3-11, 5.
27 BVerfG, Judgment of the Second Senate of 05 May 2020, 2 BvR 859/15, para 117.
28 See eg Stephen Weatherill, ‘Competence Creep and Competence Control’, (2005) 23 Yearbook of European Law 155.
29 BVerfG, Judgment of the Second Senate of 05 May 2020, 2 BvR 859/15, para 157.
30 ibid, para 156.
31 Federico Fabbrini, ‘Suing the BVerfG’, (2020) Verfassungsblog, https://verfassungsblog.de/suing-the-bverfg/
(accessed 12 June 2020).
23
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As could be argued, the conflict between the BVerfG and the Court of Justice highlights
the original sin which may have contributed to the extent the financial crisis actually took in the
EU: How is it feasible to have a common monetary union with a common currency, but without a
common economic policy (at least for the Eurozone)? Admittedly, Articles 136 to 138 TFEU are
special provisions for those Member States’ whose currency is the Euro, allowing the Council to
adopt measures to strengthen the coordination and surveillance of Member States’ budgetary
discipline,32 and setting economic policy guidelines for them, while ensuring compatibility with
those adopted for the whole of the EU as well as their surveillance.33 However, this does not ensure
the level of coordination needed for an adequate protection of the financial markets through swift
decision-making in the Eurozone in times of crisis.34
Without this inherent constitutional flaw, the EU would have most likely been able to tackle
the financial crisis in a much swifter and more assertive manner, thus reducing the impact it has
had on the Eurozone. This further bears the question of what would happen in a similar situation
in the future: to which extent can the EU’s competence under the monetary policy area continue
to compensate for the lack of powers under the economic policy area, even without the
constitutional rebellion of a national court such as the German FCC? And what can be done in
order to avoid such a conflict of competences in the first place?
2.2
THE WAY FORWARD: ON THE VERGE OF A RE-DISTRIBUTION OF EU
COMPETENCES?
As the law currently stands, the overlap between monetary and economic policies leads to a conflict
of competences between the EU and Member States. Yet, a clear-cut delimitation without
encroaching upon the respective other policy area seems impossible to achieve.35 However, as has
been acknowledged by the German FCC in its judgment:
The distinction between economic policy and monetary policy is a fundamental political
decision with implications beyond the individual case and with significant consequences
for the distribution of power and influence in the European Union. The classification of a
measure as a monetary policy matter as opposed to an economic or fiscal policy matter
32
Art. 136(1)(a) TFEU.
Art. 136(1)(b) TFEU.
34 For some more detailed reflections, see Kaarlo Tuori, ‘The European Financial Crisis: Constitutional Aspects and
Implications’, (2012) EUI WP LAW 2012/28.
35 BVerfG, Judgment of the Second Senate of 05 May 2020, 2 BvR 859/15, para 161.
33
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bears not only on the division of competences between the European Union and the
Member States; it also determines the level of democratic legitimation and oversight of the
respective policy area, given that the competence for the monetary policy has been
conferred upon the ESCB as an independent authority36
Thus, the only possible solution to this conflict of interests between the national and
European level directly resulting from the inherent flaw of overlapping competences in the treaties
is indeed by a re-distribution of those very competences, which would require treaty change. While
this might mean raising the economic leg by further “communitarising” Member States’
competences, the separation of the two policy areas into different competence categories has
proven problematic and is clearly unsustainable in the longer term. A formal treaty change would
be in line with the principle of conferred powers and thus provide much needed legal certainty.
Treaty changes in the EU bear a certain risk of failure, as was the case with the failed
Constitutional Treaty before the Treaty of Lisbon was introduced. However, without such a change
of the constitutional setup of competences and in light of the most recently announced Pandemic
Emergency Purchase Programme (PEPP),37 as a response to the coronavirus pandemic, a similar
conflict could occur in the very near future. In fact, the only aspect which both the German FCC
and the Court of Justice agree on is the compatibility with the prohibition of monetary financing
according to Article 123 TFEU, which arguably the new PEPP might fall foul of.38 Thus, a timely
political solution in the form of a treaty change could prevent further legal uncertainty and
unnecessary judicial turf wars between the Court of Justice and national courts in the longer term.
3 THE PROPORTIONALITY REVIEW OF THE BVERFG’S PSPP AND ITS
LINK TO ULTRA VIRES AND CONSTITUTIONAL CORE
3.1
SOLANGE BABEL’S TOWER HAS NOT BEEN FINALISED
While the judgment may have broader implication for the relationship between EU and national
law, the judgment itself addresses a particular act and situation. A substantial amount of criticism
36
ibid, para 159.
European
Central
Bank,
18
March
2020,
https://www.ecb.europa.eu/press/pr/date/2020/html/ecb.pr200318_1~3949d6f266.en.html (accessed 11 June
2020).
38 Miguel Poiares Maduro, “Some Preliminary Remarks on the PSPP Decision of the German Constitutional Court”,
https://verfassungsblog.de/some-preliminary-remarks-on-the-pspp-decision-of-the(2020)
Verfassungsblog,
german-constitutional-court/ (accessed 15 June 2020).
37
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of the BVerfG’s decision relates to its proportionality analysis and most likely more criticism will
follow. The reaction is maybe not surprising as it is the first time in the history of the EU that a
national court refuses to comply with a direct ruling of the Court of Justice.39 Reading the
commentary, three interrelated lines of critique seem to exist. These focus on the BVerfG having
misconstrued the proportionality review under EU law, the proportionality review performed in
the judgment is itself inconsistent, and an attitude that might be summarised as ‘am deutschen
Wesen mag die Welt genesen’ or as Davies40 has put it, ‘colonialist’.
The commentators point out that the proportionality review applied by the BVerfG is not in
line with the EU proportionality requirement41 where it is not obvious that proportionality stricto
sensu applies given that Article 5(4) TEU seems more narrow only requiring the EU to ‘not exceed
what is necessary to achieve the objectives of the Treaties’.42 As noted the BVerfG seems to take
issue with this, citing numerous examples to show that the proportionality review in EU law is
different. But rather than accepting this EU proportionality review, it replaces the Luxembourg
proportionality with its own conception of proportionality.43 It thereby seems to overlook that
although the Luxembourg’s proportionality review has be (deeply) inspired by the German
proportionality review, it does not mean that they are the same.44 Some go even so far to suggest
that the BVerfG invented a new proportionality test, as proportionality in the EU does not require
the balancing of ‘conflicting’ policy objectives beyond where such balancing is explicitly recognised
as for example in Article 106 (2) or 107 (3) TFEU.45 Moreover, it has be pointed out that even if
39 And the BVerG did not even send a second request before issuing its judgment, see eg https://eulawlive.com/oped-the-eu-judiciary-after-weiss-proposing-a-new-mixed-chamber-of-the-court-of-justice-by-daniel-sarmiento-and-j-hh-weiler/.
40 As Gareth Davies, ‘The German Constitutional Court Decides Price Stability May Not Be Worth Its Price’ (21 May
2020) available at: https://europeanlawblog.eu/2020/05/21/the-german-federal-supreme-court-decides-pricestability-may-not-be-worth-its-price (accessed 10 June 2020).
41 See amongst many eg Dimitrios Kyriazis, ‘The PSPP judgment of the German Constitutional Court: An Abrupt
Pause to an Intricate Judicial Tango (6 May 2020) available at https://europeanlawblog.eu/2020/05/06/the-psppjudgment-of-the-german-constitutional-court-an-abrupt-pause-to-an-intricate-judicial-tango (accessed 10 June 2020).
42 Gareth Davies, ‘The German Constitutional Court Decides Price Stability May Not Be Worth Its Price’ (21 May
2020) available at: https://europeanlawblog.eu/2020/05/21/the-german-federal-supreme-court-decides-pricestability-may-not-be-worth-its-price (accessed 10 June 2020).
43 Pavlos Eleftheriadis, ‘Germany’s Failing Court’ (8 May 2020) available at: https://verfassungsblog.de/germanysfailing-court (accessed 10 June 2020).
44 Diana-Urania Galetta, ‘Karlsruhe über alles? The reasoning on the principle of proportionality in the judgment of 5
May 2020 of the German BVerfG and its consequences’ available at: https://ceridap.eu/karlsruhe-uber-alles-thereasoning-on-the-principle-of-proportionality-in-the-judgment-of-5-may-2020-of-the-german-bverfg-and-itsconsequences (accessed 10 June 2020).
45 Phedon Nicolaides, ‘The Judgment of the Federal Constitutional Court of Germany on the Public Sector Asset
Purchase Programme of the European Central Bank: Setting an Impossible and Contradictory Test of Proportionality’
(15 May 2020) available at: https://eulawlive.com/op-ed-the-judgment-of-the-federal-constitutional-court-of-
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the Court of Justice’s proportionality review is not up to the standards of Karlsruhe, it something
rather different in a legal system to reject a judgment against which no further appeals are possible,
such as the Court of Justice’s.46
The second line of criticism concerns the proportionality test applied or one might say
imposed by the BVerfG. This test has be criticised, in particular, because it creates a kind of catch22 situation for the ECB:47 It requires the ECB to balance monetary and fiscal policy as having
equal value48 while the EU legal framework foresees a monetary policy as the objective of the ECB
taking priority. In a similar fashion it has be criticised that such a balance would not be something
familiar or easy to understand for lawyers.49 This lack of comfortability with such a balancing
possibly stems from the idea of incommensurability50 and is reflect in a number of the arguments
advanced against the BVerfG’s proportionality assessment. For instance, it has been suggested that
it would be impossible to carry a balancing as the ‘ECB would have to identify a common
denominator in order to balance the effects [..and it would be unworkable to do so] in practice
because it requires the ECB to take into account an unspecified number and type of effects outside
the boundaries of monetary policy.’51 In a similar direction, Maduro criticises the balancing required
by the BVerfG for its ‘profound’52 inconsistency. Such a balancing would be rather one sided: it
would have to take account of the economic, fiscal and political costs but at the same time seems
not to be able to take account of any ‘economic, fiscal and political benefits of the monetary
germany-on-the-public-sector-asset-purchase-programme-of-the-european-central-bank-setting-an-impossible-andcontradictory-test-of (accessed 10 June 2020).
46 Peter Meier-Beck, ‘Ultra vires?’ (11 May 2020) available at: https://www.d-kart.de/en/blog/2020/05/11/ultra-vires
(accessed 10 June 2020).
47 Ana Bobić and Mark Dawson, ‘What did the German Constitutional Court get right in Weiss II?’ (12 May 2020)
available at: https://eulawlive.com/op-ed-what-did-the-german-constitutional-court-get-right-in-weiss-ii-by-anabobic-and-mark-dawson (accessed 10 June 2020).
48 See eg BVerG (n 1) paras 133 f.,146, 163, 165, 167 f., 173, 176.
49 Peter Meier-Beck, ‘Ultra vires?’ (11 May 2020) available at: https://www.d-kart.de/en/blog/2020/05/11/ultra-vires
(accessed 10 June 2020).
50 See eg Francisco Urbina, A Critique of Proportionality and Balancing (CUP 2017).
51 Phedon Nicolaides, ‘The Judgment of the Federal Constitutional Court of Germany on the Public Sector Asset
Purchase Programme of the European Central Bank: Setting an Impossible and Contradictory Test of Proportionality’
(15 May 2020) available at: https://eulawlive.com/op-ed-the-judgment-of-the-federal-constitutional-court-ofgermany-on-the-public-sector-asset-purchase-programme-of-the-european-central-bank-setting-an-impossible-andcontradictory-test-of (accessed 10 June 2020).
52 Miguel Poiares Maduro, ‘Some Preliminary Remarks on the PSPP Decision of the German Constitutional Court’ (6
May 2020) available at: https://verfassungsblog.de/some-preliminary-remarks-on-the-pspp-decision-of-the-germanconstitutional-court (accessed 10 June 2020).
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oriented decisions.’53 Overall, many commentators highlight that such balancing would be ‘a highly
political process […] best left to the legislature.’54
Thus, it is not surprising that many have criticised a BVerfG’s attitude which suggests that
the German standard of proportionality is the correct one to be applied. It has brought about an
impressive list of claims surrounding the German Sendungsbewustsein (sense of mission) along
the lines of ‘am Deutsches Wesen soll die Welt genesen’:
-
-
-
‘Why should a German standard be imposed as an EU standard.’55
‘In a club of many members, it is more offensive for one to tell the others how it should
be run, than for that member to simply turn their back. […] It is not so much un-European,
as colonialist.’56
‘Das BVerfG erklärt dem EuGH in ziemlich schulmeisterlicher Manier [… the principle of
proportionality]’57
‘[T]hat attitude of “cultural dominance” which clearly transpires (at least in my eyes) from
all the reasoning of the Zweiter Senat regarding the principle of proportionality, and the
necessity that the decisions taken within the PSPP programme respect it.’58
‘The FCC is teaching the CJEU how to be a court worthy of the title. And it is doing so
for the most unsophisticated of all reasons: The FCC does not like the outcome.’59
This sense of German exceptionalism was certainly not helped by the fact that the BVerfG
in its this proportionality review highlighted those interests that seems mainly relevant form a
German perspective and what might be rather less relevant in other Member States.60
53
ibid.
Instead of many, see Gareth Davies, ‘The German Constitutional Court Decides Price Stability May Not Be Worth
Its Price’ (21 May 2020) available at: https://europeanlawblog.eu/2020/05/21/the-german-federal-supreme-courtdecides-price-stability-may-not-be-worth-its-price (accessed 10 June 2020).
55 Toni Marzal ‘Is the BVerfG PSPP decision “simply not comprehensible”? A critique of the judgment’s reasoning
on proportionality’ (9 May 2020) https://verfassungsblog.de/is-the-bverfg-pspp-decision-simply-not-comprehensible
(accessed 10 June 2020).
56 Gareth Davies, ‘The German Constitutional Court Decides Price Stability May Not Be Worth Its Price’ (21 May
2020) available at: https://europeanlawblog.eu/2020/05/21/the-german-federal-supreme-court-decides-pricestability-may-not-be-worth-its-price (accessed 10 June 2020).
57 Franz C. Mayer, ‘Auf dem Weg zum Richterfaustrecht? Zum PSPP-Urteil des BVerfG’ (7 May 2020) available at:
https://verfassungsblog.de/auf-dem-weg-zum-richterfaustrecht (accessed 10 June 2020).
58 Diana-Urania Galetta, ‘Karlsruhe über alles? The reasoning on the principle of proportionality in the judgment of 5
May 2020 of the German BVerfG and its consequences’ available at: https://ceridap.eu/karlsruhe-uber-alles-thereasoning-on-the-principle-of-proportionality-in-the-judgment-of-5-may-2020-of-the-german-bverfg-and-itsconsequences (accessed 10 June 2020).
59 Urška Šadl, ‘When is a Court a Court?’ (20 May 2020) available at: https://verfassungsblog.de/when-is-a-court-acourt (accessed 10 June 2020).
60 Franz C. Mayer, ‘Auf dem Weg zum Richterfaustrecht? Zum PSPP-Urteil des BVerfG’ (7 May 2020) available at:
https://verfassungsblog.de/auf-dem-weg-zum-richterfaustrecht (accessed 10 June 2020).
54
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Overall, the judgment certainly displays a very German understanding of proportionality but
equally a very German understanding of EU law as public law all shaped by a German
understanding of administrative review and judicial review of such acts. The first part of the
judgment very much reads like a judgment of BVerfG examining whether a judgment of the
Bundesverwaltungsgericht (the Federal Administrative Court -the ultimate appeal for
administrative matters) and the review of the administrative decision performed by the Federal
Administrative Court was compliant with the constitutional principles. Even the structure of the
judgment very much reminds the reader of this form of review performed by the BVerfG. It first
examines the Court’s judgment - in this case the Court of Justice’s – and, then, explores in a second
step whether the administrative decision - in this case the ECB’s - itself is proportional. The
BVerfG’s judgment even finds one of the classical deficiencies in German administrative law, a
failure to explain whether a proportionality assessment has been carried out. Thus, just as in
administrative law cases, the BVerfG is examining not necessarily the proportionality review by the
Court of Justice per se. Instead, it is assessing the overall review intensity and, then, in a second step
the question whether the programme as a decision of a public authority could be justified – using
the ‘corrected’ standard of review. In this sense, the judgment might not be so surprising, at least
for a German public lawyer.61
The second element that also seems rather German relates to the incommensurability issue.
For the German constitutional court, the idea of incommensurability does not exit.62 Instead, the
BVerfG uses the principle of praktischen Konkordanz63 known expressly from the area of
fundamental rights protection.64 As such, the BVerfG does not consider it particularly problematic
or difficult to balance different fundamental rights against each other or to balance eg the freedom
of the arts against requirements of child and youth protection.65 The principle of praktische
Konkordanz is a method to solving norm conflicts between two objectives of equal value and could
be said to be at the heart of German public and constitutional law. It such a balancing that the
BVerfG expects the ECB to perform as part of proportionality assessment. The BVerfG expects
Or as Bobić and Dawson put it ‘a student who was a good positivist’, see Ana Bobić and Mark Dawson, ‘What did
the German Constitutional Court get right in Weiss II?’ (12 May 2020) available at: https://eulawlive.com/op-edwhat-did-the-german-constitutional-court-get-right-in-weiss-ii-by-ana-bobic-and-mark-dawson (accessed 10 June
2020).
62 Except maybe with regard to human dignity which is not subject to any balancing, see eg BVerfG, Luftsicherheitsgesetz,
1 BvR 357/05 (2006) ECLI:DE:BVerfG:2006:rs20060215.1bvr035705.
63 Principle of practical concordance.
64 See Robert Alexy, Theorie der Grundrechte (Suhrkamp 1994).
65 BVerfG Mutzenbacher,1 BvR 402/87 (1990).
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the ECB not to act blindly without regard to the consequence. Instead, it should identify possible
interest affected66 by its decision. In practise, the BVerfG does not necessarily require a ‘full
weighing’ of the different interests but rather performance of the usual suitability and necessity test
plus finally and exploration of whether any foreseeable negative effects of the PSPP programme
would have manifestly outweighed their benefits (proportionality stricto sensu). And in nearly
traditional German administrative law fashion, the BVerfG expressed concern that it was not
discernible whether such an enquiry had taken place67 thereby emphasising the procedural element
of proportionality.68 Such an exercise is not too different from the obligations outlined by the GC
has in its recent Steinhoff decision69 regarding the ECB or those of the Commission in Ledra.70 In
Steinhoff, the GC held that even where ECB fulfils only its consultative function to the Member
States it would be bound by the Charter and the requirement to contribute to the aims of the EU
contained in Article 2, 3 and 6 TFEU.71 Therefore, the ECB would have been required to take
account of possible violations of those norms when providing its advice to Cyprus on the
restructuring programme.
What becomes clear is that the BVerfG employed a rather German understanding of
proportionality and that this concept might not be the same as the EU’s concept. It seems like a
classical lost in translation situation: just because something is called Verhältnismäßigkeit in
judgments of the Court of Justice it does not mean that the German Verhältnismäßigkeit is meant.
Verhältnismäßigkeit, proportionality, proportionnalité or its myriad of other translations does not
mean the same thing in different legal systems. It is a concept not just a term, and concepts are
difficult to translate as they are embedded in their cultural context.72 The cultural context, in this
case the constitutional context, matters.
66
Fundamental right might also come into play.
Thus, the three months period to provide reasons.
68 What Davies calls ‘extra-territorial application of national administrative law.’, Gareth Davies, ‘The German
Constitutional Court Decides Price Stability May Not Be Worth Its Price’ (21 May 2020) available at:
https://europeanlawblog.eu/2020/05/21/the-german-federal-supreme-court-decides-price-stability-may-not-beworth-its-price (accessed 10 June 2020).
69 Case T-107/17 Steinhoff and others ECLI:EU:T:2019:353. For a comment see Diane Fromage, ‘The ECB and its
expanded duty to respect and promote the EU Charter of Fundamental Rights after the Steinhoff case’ (9 June 2020)
available at: http://eulawanalysis.blogspot.com/2020/06/the-ecb-and-its-expanded-duty-to.html (accessed 10 June
2020).
70 Joined Cases C-8/15 P to C-10/15 P Ledra Advertising Ltd and others ECLI:EU:C:2016:701 in particular paras 67-68.
For a comment see Alicia Hinarejos, ‘Bailouts, Borrowed Institutions, and Judicial Review: Ledra Advertising’ available
at: http://eulawanalysis.blogspot.com/2016/09/bailouts-borrowed-institutions-and.html (accessed 10 June 2020).
71 Case T-107/17 Steinhoff and others ECLI:EU:T:2019:353 para 98.
72 See eg, Theo Hermans, ‘Cross-cultural translation studies as thick translation’ (2003) 66:3 Bulletin of the School of
Oriental and African Studies 380-389.
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We might, thus, think of a version of the tower of babel where people had the same intention
of jointly building a tower but were hampered by the fact that they did not understand each other.
The EU edifice is built by numerous actors and courts, using multiple languages, all of which have
a claim to be the official language of the EU and the Court of Justice. Thus, even though the same
terms are used in the different language for a concept and their actual meaning might be close there
might still be considerable difference due to (legal) cultural background73 in which they are
embedded. The metaphor of the Babel’s tower as common edifices build by numerous actors is
also interesting in another way. Building successfully relies on common standards. Just because
everyone involved uses ‘the ell’ to determine length doesn’t mean the building will be stable. As
long as the builders involved are not aware that there are Scottish, Polish, French, Swedish and
different variations of the Danish and German the ell. In essence, the whole situation is also a very
familiar problem encountered in the building of the EU’s internal market. There might a myriad of
interpretation what is a ‘safe’ toy for kids. The EU has managed to overcome these problems in
the internal market by means of mutual trust and commonly agreed standards and entrusted the
final interpretation to the Court of Justice.74 What is however different, is that the Court of Justice
is a not anymore, an arbiter but rather just considered another player in the game and one that the
BVerfG does not trust, at least in this particular instance.
While these observations might explain what we see, it still leaves us with the question that
Claes had already raised with regard to Gauweiler:75 Why should the German standard be the EU
standard for review?
3.2
THE BVERFG PROPORTIONALITY IN ITS BROADER CONTEXT
However, maybe it doesn’t have to be the German standard of proportionality. To focus
solely on proportionality would miss the broader picture in which the BVerfG places its
proportionality review. A pure violation of the BVerfG proportionality review standard alone
73
In a similar direction pointing to the different legal cultures between in terms of drafting of judgments between the
BVerfG and the Court of Justice, Diana-Urania Galetta, ‘Karlsruhe über alles? The reasoning on the principle of
proportionality in the judgment of 5 May 2020 of the German BVerfG and its consequences’ available at:
https://ceridap.eu/karlsruhe-uber-alles-the-reasoning-on-the-principle-of-proportionality-in-the-judgment-of-5-may2020-of-the-german-bverfg-and-its-consequences (accessed 10 June 2020).
74
See also Pavlos Eleftheriadis, ‘Germany’s Failing Court’ (8 May 2020) available at:
https://verfassungsblog.de/germanys-failing-court (accessed 10 June 2020).
75 See Monica Claes, ‘The Validity and Primacy of EU Law and the “Cooperative Relationship” between National
Constitutional Courts and the Court of Justice of the European Union’ (2016) MJECL 151.
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would not justify disobeying with EU law as also the BVerfG’s judgment highlights. 76 And
Eleftheriadis highlights the BVerfG’s case law on ultra vires and constitutional identity review which
should only come into play with regard to ‘important constitutional transformations, not to any
error supposedly committed by an international body to which we have delegated powers. [But]
the ultra vires review [is reserved] for manifest failures and for what we might call violations of
constitutional fundamentals.’77 The broader context is therefore crucial to understand how the
BVerfG could establish such a grave instance.
Traditionally, we have seen three distinct area of review by the BVerfG, the Solange type
fundamental rights protection, the ultra vires, and finally the constitutional identity as constitutional
core.78 While it has been observed previously79 that there is an overlap between these pillars of
review, this judgment further highlights this connection. Without this connection the BVerfG
would not have been able to claim to have established an ultra vires act in line with its established
case law. Hence, the BVerfG rejects the proportionality review by the Court of Justice not (solely)
because it is in its view too lenient but rather because it occurs in a specific context that is linked
to the constitutional identity/core.
The BVerfG highlights the democratic principles protected by unamendable constitutional
identity/core of the German Constitution, democratic participation by means of democratic
election.80 Or maybe more precisely equal chances for the citizens to affect the democratic process
as the BVerfG has highlighted in its case law on elections to the Bundestag.81 The PSPP judgment
highlights the importance of this principle and requires increased judicial review in cases where
such democratic legitimacy exists only in diminished from.82 Thereby, the BVerfG picks up a theme
already existent in its Gaulweiler decision. There it demanded a restrictive interpretation of the
76
See eg para 110 highlighting that a transgression of the competences needs to be structurally relevant in the
competence allocation and to the detriment of the Member States.
77 Pavlos Eleftheriadis, ‘Germany’s Failing Court’ (8 May 2020) available at: https://verfassungsblog.de/germanysfailing-court (accessed 10 June 2020).
78 See section 4 for a focus on the ultra vires review.
79 See the decision in BVerfG 15.12.2015 - 2 BvR 2735/14, ECLI:DE:BVerfG:2015:rs20151215.2bvr273514 and the
comment on its relevance Julian Nowag, ‘EU law, constitutional identity, and human dignity: A toxic mix? Mr R
Bundesverfassungsgericht 2 BvR 2735/14, Mr R v. Order of the Oberlandesgericht Düsseldorf, Order of the
Bundesverfassungsgericht (Second Senate) of 15 December 2015, DE:BVerfG:2015:rs20151215.2bvr273514’ (2016)
54
Common
Market
Law
Review
1441-1454,
available
also
at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2840473 (accessed 10 June 2020).
80 para 101.
81 See eg BVerfG, Ländersitzkontingente - 2 BvF 3/11 - (25 Juli 2012) ECLI:DE:BVerfG:2012:fs20120725.2bvf000311.
82 Ana Bobić and Mark Dawson, ‘What did the German Constitutional Court get right in Weiss II?’ (12 May 2020)
available at: https://eulawlive.com/op-ed-what-did-the-german-constitutional-court-get-right-in-weiss-ii-by-anabobic-and-mark-dawson (accessed 10 June 2020).
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ECB’s monetary mandate due to the ECB’s independence and thus diminished democratic
legitimacy.83
The BVerfG finds the overall review of ECB acts by the Court of Justice insufficient and
thus ultra vires because Court of Justice’s review is lenient both in terms of the legal basis as well as
in terms of proportionality.84 In this regard, it is important to highlight that the BVerfG could not
decide with certainty that the ECB acted itself ultra vires. It is rather the review or more precisely
the perceived lack of oversight by the Court of Justice compounded by the absence of democratic
oversight over the ECB that would allow the ECB to act (potentially) ultra vires. The BVerfG
highlights a number of times85 that the lenient review with regard to the legal basis combined with
the lenient review over how the ECB uses the power derived from this legal basis means that no
meaningful control of the actions of the ECB is in takes place.86 Or to put it bluntly: under the
Court of Justice’s review standards the ECB can do what it likes, as long as the ECB does not
openly oversteps its competence. Thus, the BVerfG concern is that the Court of Justice essentially
has handed the ECB a competence-competence: the ECB can decide how it interprets the legal
basis for its actions and moreover does not face constraints in how it exercises its power under
that legal basis.
Seen from this perspective the Court of Justice’s failure in the view of the BVerfG was to
grant the ECB with such a power. An unlimited power/competence that conceivably might be
used in such a broad way that it touches upon the core of the ‘the right to vote’ and the ‘budgetary
autonomy’ of the Bundestag as protected by the constitutional identity clause.87 Thus, the
combination of a light touch legal basis review with a light touch review of the actions, in particular
in terms of proportionality spells the danger of ultra vires acts.88 This danger is compounded where
such acts are able to touch upon core values protected by the German constitution.
Armin Steinbach, ‘Ultra schwierig’ (6 Mai 2020) available at: https://verfassungsblog.de/ultra-schwierig (accessed
10 June 2020).
84 See para 156.
85 See para 140 and 164ff.
86 See also Armin Steinbach, ‘Ultra schwierig’ (6 Mai 2020) available at: https://verfassungsblog.de/ultra-schwierig
(accessed 10 June 2020).
87 See eg para 102, 103, 234 but see also the previous Lisbon judgment where the BVerfG equally highlighted these
matters as core, BVerfG 30 June 2009 - 2 BvE 2/08 - para 256.
88 See in particular para 156.
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If this is the relevant ‘danger zone’ for the BVerfG would that not also spell trouble for
other areas of EU action?89 The judgment seems to send a clear message to the ECB as an
institution with less democratic legitimacy that a more stringent review will need to take place.90
But could the same not be said about other independent EU agencies or possibly even the
Commission? It is certainly not an unreasonable to point to such dangers. However, the
Commission’s better regulation agenda which includes increased procedural steps in terms of the
proportionality review and where relevant the oversight and involvement of the EU Parliament
should mitigate against such a danger. Moreover, the EU’s better regulation agenda also allows the
Court of Justice to perform a more meaningful review of Commission acts.91 However, this
reasoning might well apply to a whole range of independent EU agencies depending on whether
the Court of Justice applies what Öberg92 calls administrative review or the more lenient legislative
standard.
Overall, the judgment links review intensity by the Court of Justice with the ultra vires review
by the BVerfG. And in good tradition93 the BVerfG’s judgment can be framed in a solange fashion:
As long as there is not meaningful review either at the stage of competence or in the exercise of
the competence (eg by means of proportionality) for institutions of the EU with reduced
democratic legitimacy, the BVerfG will carry out such a review by means requiring compliance with
(its own) administrative law based proportionality review.
89
Besides form well described problems that the PSPP judgment might create in terms of the rule of law procedures
in Poland and Hungary.
90 See also Ana Bobić and Mark Dawson who explain: ‘Judicial review of ECB needs to be more detailed as there are
less political review due to independence’, see Ana Bobić and Mark Dawson, ‘What did the German Constitutional
Court get right in Weiss II?’ (12 May 2020) available at: https://eulawlive.com/op-ed-what-did-the-germanconstitutional-court-get-right-in-weiss-ii-by-ana-bobic-and-mark-dawson (accessed 10 June 2020).
91 See Julian Nowag and Xavier Groussot, ‘From Better Regulation to Better Adjudication? Impact Assessment and
the Court of Justice’s Review’ with in Sacha Garben and Inge Govaere (eds.), The EU Better Regulation Agenda: A
Critical
Assessment
(Hart
Publishing,
2018)
185-202,
available
also
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3024039 (accessed 10 June 2020).
92 Jacob Öberg, ‘The German Federal Constitutional Court’s PSPP Judgment: Proportionality Review Par Excellence’
(2 June 2020) available at https://europeanlawblog.eu/2020/06/02/the-german-federal-constitutional-courts-psppjudgment-proportionality-review-par-excellence/ (accessed 9 June 2020), see also Jacob Öberg, ‘The Rise of the
Procedural Paradigm: Judicial Review of EU Legislation in Vertical Competence Disputes’ (2017) 13(2) European
Constitutional Law Review 248-280.
93
See with regard to the case BVerfG Mr R 15.12.2015 - 2 BvR 2735/14,
ECLI:DE:BVerfG:2015:rs20151215.2bvr273514. Mathias Hong Human Dignity and Constitutional Identity: The
Solange-III-Decision
of
the
German
Constitutional
Court,
VerfassungsBlog,
18.2.2016,
http://verfassungsblog.de/human-dignity-and-constitutional-identity-thesolange-iii-decision-of-the-german-constitutional-court (accessed 9. June 2020).
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This judgment sends a strong massage. Yet, it seems rather surprising that BVerfG would
expect that other actors in the European arena would not only fully understand the German
proportionality test but also expect them to apply it. In such a situation one is indeed left with the
questions whether the EU edifices suffers from an insurmountable Babel tower problem. But it
doesn’t have to be that way. As others pointed out the judgment’s challenge might lead to a reform
of the EMU.94 More broadly it seems to challenge not only the EMU but the Court of Justice’s
judicial review intensity of a whole range of independent EU governance structures. Looking at
this challenge not only from a narrow proportionality perspective but from the overall review
intensity might help. For independent EU governance structures the BVerfG judgment seems to
demand either more democratic control or a more intense judicial review, whether in the form of
legal basis review or in form of how these EU institutions exercise their powers. Working on these
underlying structural issues rather than debating how to define the ell or proportionality might be
more effective for building towers or building the EU edifice.
If the EU were to accept the BVerfG’s message and wanted to address the identified gap,
the Court of Justice could obviously change its review intensity. However, another far reaching
adjustment could be implemented by means of EU secondary legislation. The EU could adopt
legislation to extend the Commission’s Better Regulation agenda beyond the realm of the
Commission and the adoption of legislation. It would require all independent EU agencies to
perform a regulatory impact assessment addressing specifically proportionality of the measure and
subsidiary. The requirement to carry out such an impact assessment could take account of the
distinction of Article 263 TFEU. It would thus only apply to legislative and regulatory acts but not
in the case of decision addressed to individual persons.
Such a proposal might raise questions about the extent to which it would encroach on the
ECB’s independence and the extent to which the ECB would be bound by it. While these questions
of competence are interesting, in practice it is unlikely that the ECB would be able to withstand
such the pressure to adopt such measures. Moreover, such legislation could be introduced in
tandem with the ECB, so that the normal legislative rules and internal ECB rules would be the
same and come into force at the same time.
Ana Bobić and Mark Dawson, ‘What did the German Constitutional Court get right in Weiss II?’ (12 May 2020)
available at: https://eulawlive.com/op-ed-what-did-the-german-constitutional-court-get-right-in-weiss-ii-by-anabobic-and-mark-dawson (accessed 10 June 2020).
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Measures like these should be able to address the issues identified by the BVerfG but
broader questions regarding EU law and ultra vires review by national courts remain.
4. THE WORLDS OF CONSTITUTIONAL PLURALISM AND ULTRA VIRES
REVIEW
4.1 CONSTITUTIONAL PLURALISM AFTER THE LISBON DECISION: AN ULTRA
VIRESATION OF EU LAW?
The last decade has been the seed of a reinforcement of the control of the FCC over
the Court of Justice case law and its exclusive jurisdiction in the judicial review of EU acts. The
Lisbon,95 Honeywell96 and OMT
97
decisions have been paradigmatic in this respect by structuring a
solid ultra vires test. The Weiss case constitutes the culmination of this process of structuring, where
the FCC frustration – that appears already between lines in the OMT decision – has certainly played
a role in the making of the decision delivered on 5 May 2020. In general, the national courts in the
European Union have reacted differently to the claim of ultimate judicial kompetenz-kompetenz
established and anchored in the Court of Justice case law. Most of the national courts do not see
any objection to the exclusive jurisdiction of the Court of Justice. Yet some national courts have
claimed jurisdiction to review Union acts and it is so that no courts have expressly acknowledged
95
BVerfG, Case No. 2 BvR 2/08.
BVerfG, Case No. 2 BvR 2661/06
97 BVerfG, Case No. 2 BvR 2728/13.
96
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the ultimate authority of the Court of Justice.98 Indisputably, national constitutions of some
Member States were construed in such a way that the final constitutional, legislative and judicial
authority lies in the Member State.99 The case law of the FCC in Germany provides here the best
and most advanced sample of a national constitutional court reacting towards primacy of EU law
and the related issue of the exclusive jurisdiction of the Court of Justice. Those issues have arisen
mainly in the context of fundamental rights and the divide of competences for many decades.100
The tension has particularly increased in the wake of Lisbon Treaty with the judgment of the FCC
in the Lisbon decision101 and the development of a structured protocol to declare an EU act ultra
vires.
The ruling of the FCC on 30 June 2009 reflects a defensive approach and a
skepticism towards European integration.102 The core of the ruling is focused on the concept of
constitutional identity. The FCC states that the principle of conferral and the duty under EU law
to respect identity are the expression of the foundation of Union authority in the constitutional law
of the Member States.103 The paragraph 241 clearly reflects a radical view on constitutional
pluralism.104 Indeed, the constitutional court considers in a systematic manner, which are the means
98
See House of Lords, The Future Role of the European Court of Justice (2004) 6th report, para 65.
ibid para 67.
100 The assertion by the Court of Justice (Case C-11/70), in Internationale Handelsgesellschaft, that Community law is
superior to the national law of the Member States - even their constitutional law - was the trigger of the national court’s
rebellion, which reacted against the evident lack of human rights within EC law in the Solange cases. Decision of 29
May 1974, Internationale Handelsgesellschaft, BVerfGE 37, 271 [1974] CMLR 540; Decision of the 22 October 1986,
BVerfG 73, 339 [1987] 3 CMLR 225. See for an overview of the debate, Bruno de Witte, “The Past and Future Role
of the European Court of Justice in the Protection of Human Rights”, in Philipp Alston (ed.), The EU and Human
Rights (OUP, 1999), 859, 863-864; and Mattias Kumm, ‘Who is the Final Arbiter of Constitutionality in Europe? Three
Conceptions of the Relationship between the German Federal Constitutional Court and the European Court of Justice’
(1999) 36 CMLRev. 351, 364. Notably, the possibility to control the compatibility of EU law in the light of fundamental
rights guaranteed by national constitutional law was already invoked by the FCC in 1967. See Bundesverfassungsgericht, 18
October 1967, BVerfGE 22, 233.
101 BVerfG (n 95).
102 Christian Tomuschat, ‘The Ruling of the German Constitutional Court on the Treaty of Lisbon’ (2009) 10 GLJ,
1259, 1260; and Frank Schorkopf, ‘The European Union as An Association of Sovereign States: Karlsruhe’s Ruling on
the Treaty of Lisbon’ (2009) 10 GLJ 1219, 1220-1221.
103 BVerfG (n 95), para 234.
104 ibid, para 241: ‘The ultra vires review as well as the identity review can result in Community law or Union law being
declared inapplicable in Germany. To preserve the viability of the legal order of the Community, an application of
constitutional law that is open to European law requires, taking into account the legal concept expressed in Article
100.1 of the Basic Law, that the ultra vires review as well as the establishment of a violation of constitutional identity is
incumbent on the Federal Constitutional Court alone. It need not be decided here in which specific types of
proceedings the Federal Constitutional Court’s jurisdiction may be invoked for such review. Availing oneself to types
of proceedings that already exist, i.e. the abstract review of statutes (Article 93.1 no. 2 of the Basic Law) and the
concrete review of statutes (Article 100.1 of the Basic Law), Organstreit proceedings (Article 93.1 no. 1 of the Basic
Law), disputes between the Federation and the Länder (Article 93.1 no. 3 of the Basic Law) and the constitutional
complaint (Article 93.1 no. 4a of the Basic Law) is a consideration. What is also conceivable, however, is the creation
by the legislature of an additional type of proceedings before the Federal Constitutional Court that is especially tailored
to ultra vires review and identity review to safeguard the obligation of German bodies not to apply in Germany, in
99
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of judicial review available to challenge Union law. i.e. ultra vires review or identity review (the socalled eternal clause). It even proposes to the national legislature an additional type of proceeding
especially tailored for the review of EU legislation. The ruling of the FCC in Honeywell delivered in
2010 is known as building on the Lisbon decision and elaborating a complete ultra vires test often
called the Honeywell protocol involving a preliminary ruling reference to the Court of Justice
followed by a high standard of judicial review.105 The protocol was put into action for the very first
time in the OMT decision after sending a reference to the Court of Justice (and this is also for the
very first time for the FCC) and following the delivery of the Gauweiler case.106 The FCC though
clearly showing it discontent with the standard of judicial review used by the Court of Justice came
to the conclusion that the ruling was not ultra vires.107 In Weiss, by contrast, the decision of the CJEU
was declared ultra vires. It is true that this not the first time that a decision of the CJEU is declared
ultra vires by a national court. This has already happened in the Landtova case108 in Czech Republic
and the AJOS case in Denmark.109 Yet the situation are quite dissimilar from the Weiss case since
these two other cases involved a situation of interpretation of national law in light of EU law. This
is different from the Weiss case, which involves the validity of an act taken by the ECB. Moreover,
the Czech and Danish cases where followed by national legislative reforms in line with the Court
of Justice case law.110 This is obviously not a possibility in the Weiss situation.111 The Weiss case is
also at odd with the recent reasonably serene dialogue112 established between many constitutional
individual cases, legal instruments of the European Union that transgress competences or that violate constitutional
identity‘.
105 See Daniel Sarmiento, ‘Requiem for Judicial Dialogue. The German Federal Constitutional Court’s Judgement in
the Weiss Case and its European Implications’, EU Law Live, Weekend Edition, 9 May 2020. 10 (accessed 10 June
2020).
106 BVerfG (n 97).
107 ibid, paras 102-103.
108
See judgement of Czech Constitutional Court of 31 January 2012, (CZ) Pl. U´ S 5/12, Slovak Pensions XVII. See
Jan Komárek, ‘Playing with Matches: the Czech CC Declares a Judgment of the Court of Justice of the EU Ultra Vires’
(2012) 9 European Constitutional Law Review, 323. The decision is described an episode of the ‘judicial war’
opposing the constitutional and the Supreme Administrative court.
109 See eg Mikael Rask Madsen and Henrik Palmer Olson, ‘Clashes Legal Certainties – The Danish Supreme Court’s
Ruling in AJOS and the Collision between Domestic Rules and EU Principles in Mark Fenwick et al (eds), The Shifting
Meaning of Legal Certainty in Comparative and Transnational Law (Hart, 2017) 189.
110 See for development Helle Krunke and Sune Klinge, ‘The Danish Ajos Case: The Missing Case from Maastricht
and Lisbon’ (2018) 3 European Papers 157.
111 See section 1.
112 See contra the judgment of the Hungarian Constitutional Court on the EU relocation policy of refugees ((HR)
Decision 22/2016 (XII.) AB on the Interpretation of Article E) (2) of the Fundamental Law). The Hungarian
Constitutional Court relied on the national constitutional identity to refuse the relocation.
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courts of other Member States as it is illustrated in Spain, Italy and France by the Melloni,113 Taricco114
and Jeremy F decisions.115 The Weiss case appears as an ultimatum directed towards EU law. It goes
against the key constitutional precepts established a long time ago in Internationale
Handelsgesellschaft.116 In other words, the Weiss ‘Ur-Teil’ is a specific message or a clear ultimatum
sent in the context of a very definite situation deemed ultra vires (the ruling of the Court of Justice
in Weiss from 2018) and within the broader setting of an EU constitutional pluralist world. This is
quite a paradox. And this begs the essential question whether the European constitutional pluralist
world is going to collapse and be destroyed from within.
4.2. IS THE CONSTITUTIONAL PLURALIST WORLD GOING TO COLLAPSE?
The world of constitutional pluralism is eclectic and opulent. It is made of many
branches, many streams, deep waters, abrupt cliffs and numerous secret vales. It is appealing but
easy to get lost in it.117 To try exploring and defining the exact boundaries of the world of
constitutional pluralism is the task for a legal Lara Croft or a legal Indiana Jones. One need to be
adventurous and daring for this mission. This case note, by contrast, is reductionist and merely
focuses on the origins of constitutional pluralism. To map the full theory of constitutional pluralism
is not the task for a case note. Yet, for fully grasping the consequences of the Weiss case on the
doctrine, it is important to look at the origins of the constitutional pluralism and to comprehend
its main claims. There is no ‘one and unique’ doctrine of constitutional pluralism but many
doctrines of constitutional pluralism. Constitutional pluralism is, perhaps not so surprisingly,
pluralist in nature. This posture adds nevertheless to the complexity of the doctrine.
113
See Case C-399/11, Melloni, EU: C:2013:107; and of the Spanish Constitutional Tribunal, Tribunal Constitucional,
order 86/2011 and judgment 26/2014. See also the position of the Constitutional Tribunal (1/2004) on 13 December
2004 where it considered the ultimate supremacy of the national constitution without overtly confronting the primacy
of EC law. Indeed, dealing with the accession to the Constitutional Treaty, the Tribunal Constitucional maintained
that there was no rivalry between the primacy of Community law and the principle of supremacy as proclaimed in the
Spanish Constitution since they constitute categories of different orders.
114 See Case C-105/14, Taricco, EU: C:2015:555; and Case of the Italian Constitutional Court, Corte Costituzionale,
order 24/2017.
115 See Case C-168/13 PPU, Jeremy F EU:C:2013:358. The French Constitutional Conseil received the case on 27
February 2013 and the decision was granted on the merits of the case on 14 June 2013. See Francois-Xavier Millet and
Nicoletta Perlo, ‘The First Preliminary Reference of the French Constitutional Court to the CJEU: Révolution de Palais
or Revolution in French Constitutional law?’ (2013) German law Journal. The first preliminary reference of the French
Constitutional Council to the CJEU is describes as a milestone which, however, may remain an isolated example due
to the limited jurisdiction.
116 See Internationale Handelsgesellschaft (n 100).
117 See eg Matej Avbelj and Jan Komárek, Constitutional Pluralism in the EU and Beyond (Hart, 2012); and Klemen Jaklic.
Constitutional Pluralism in the EU (OUP, 2014).
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The term ‘constitutional pluralism’ was coined by Neil MacCormick in the late 90’s in his Chapter
7 on ‘juridical pluralism and the risk of constitutional conflicts’.118 It is worth noting that already at
this early stage, MacCormick had difficulties to make a choice and was oscillating between two
approaches or schools of Constitutional pluralism: A radical approach to pluralism (‘radical
pluralism’)119 and an international law approach to pluralism (‘international pluralism’).120 At the
end of his Chapter, McCormick made the choice of the international law approach to pluralism.121
His new terminology was quickly and broadly endorsed by the doctrine and a new school
(‘discursive pluralism’) grown rapidly – inspired by MacCormick original idea – from the writings
of Maduro.
Discursive pluralism offers a framework for preventing constitutional conflicts. Maduro has
established a set of (contrapunctal) principles, which forms the basis of this theory and aims at
ensuring the coherency of the system.122 The hallmark of his theory is based on dialogue: a
horizontal discourse (between national courts) and a vertical discourse (between the Court of
Justice and the national courts). In addition, discursive legal pluralism takes into consideration the socalled institutional choice and thus views the question of ultimate authority not only as a question of
legal sovereignty but also as closely linked to political sovereignty.123 The theory of discursive
pluralism is monist in nature in the sense that European and national constitutional law constitutes
See Neil MacCormick, Chapter 7, ‘Juridical Pluralism and the Risk of Constitutional Conflicts’ (97-121) in Neil
MacCormick, Questioning Sovereignty: Law, State and Nation in the European Commonwealth (OUP, 1999).
119 See Neil MacCormick, Questioning Sovereignty: Law, State and Nation in the European Commonwealth (OUP, 1999), 119.
Radical pluralism is the view that ‘it is possible that the European Court interprets Community law so as to assert some
right or obligation as binding in favour of a person within the jurisdiction of the highest court of a member state, while
that court in turn denies that such a right or obligation is valid in terms of the national constitution’. Such conflicts are
‘not logically embarrassing’ because ‘strictly, the answers are from the point of view of different systems’. For
MacCormick, it is plausible that each constitutional order recognize the legitimacy of every other within its own sphere,
while none asserts or acknowledges the constitutional superiority over another.
120 ibid, according to MacCormick, ‘pluralism under international law’ means that ‘the obligations of international law
set conditions upon the validity of state and of Community constitutions and interpretations thereof and hence impose
a framework on the interactive but not hierarchical relations between systems’.
121 ibid 122.
122 Miguel Poiares Maduro, ‘Contrapunctal Law: Europe’s Constitutional Pluralism in Action’, in Neil Walker (ed.),
Sovereignty in Transition (Hart, 2003), 501.
123 This is one of the core links with the theory of constitutional pluralism à la MacCormick (n 118) See for
developments, Anneli Albi, ‘Supremacy of EC Law in the New Member States: Bringing Parliaments into the Equation
of Co-operative Constitutionalism’, (2007) 3 EuConst. 25; and Jan Komárek, ‘European Constitutionalism and the
European Arrest Warrant – In Search of the Contrapunctal Principles’ Limits’ (2007) 44 CMLRev. 9.
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two levels of a unitary system124 and thus bears striking similarities with the federalist theory, the
black sheep of constitutional theories in Europe.125
These three original schools (Radical-International-Discursive) offer an interesting
point of departure for discussing the repercussions of Weiss on the doctrine of constitutional
pluralism. It is also important to note that the doctrine of constitutional pluralism in the EU has
been free from deep and solid criticisms for almost a decade.126 Weiler has for instance famously
stated to show the dominance of constitutional pluralism that it “is today the only Membership
Card which will guarantee a seat at High Tables of the public law professoriate”.127 But doubts as
to the doctrine have slowly started to rise and have been crystalized in the context of the litigation
during the economic crisis (and this particularly after the Gauweiler case / OMT decision).128 The
critique is mostly articulated around two main claims: a theoretical claim (focusing on the monist
nature of constitutional pluralism) and a contextual claim (focusing on the repercussion of the
OMT decision on EU Law). The theoretical claim is strong and criticize the (almost) overall monist
nature of the doctrine of constitutional pluralism in EU law. It can be found in the writings of
Eleftheriadis (2010)
129
and Loughlin (2014).130 In essence, the claim is that the monist and
Kelsenian approach to constitutional pluralism seen in many schools131 does not fit the pluralist
nature of the doctrine. There is a conceptual misfit in constitutional pluralism or what Loughlin
calls more poetically an ‘oxymoron’.132 The contextual claim arises in the wake of the OMT decision
where the FCC and the CJEU confronted head to head the unsuitability of their views on the issue
of judicial kompetenz-komptenz. This case appears to indicate the end of an era. The situation was
Ingolf Pernice, ‘Multilevel Constitutionalism in the European Union’, (2002) 27 ELRev. 511. Multi-level
constitutionalism or Verfassungsverbund (compound of constitution) originates from Germany and more precisely from the
theory of Pernice. European and national constitutional law constitutes two levels of a unitary system. The essence of
multi-level constitutionalism is based on the non-hierarchical relationship between the EU and national legal orders.
See also Ingolf Pernice, ‘Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution Making
Revisited?’ (1999) 36 CMLRev. 70.
125 Compare Maduro’s theory of constitutional pluralism with the basic tenets of EU federalism.
126 Martin Loughlin, ‘Constitutional pluralism: an Oxymoron?’ (2014) 3 Global Constitutionalism 22. According to
him ‘since 2002, the concept of constitutional pluralism has been actively promoted, invariably with a positive
inflection, and it now seems to have achieved the status of a school, perhaps even a sect’.
127 Joseph Weiler ‘Prologue: Global and Plural Constitutionalism—Some Doubts’ in de Grainne Búrca and Joseph
Weiler (eds.), The Worlds of European Constitutionalism (CUP, 2011) 8.
128 See (n 97).
129 Pavlos Eleftheriadis, ‘Pluralism and Integrity’ (2010) 23 Ratio Juris 365.
130 Loughlin (n 126).
131 See MacCormick, (n 118), 102–104 and 107-108.
132 The critique of Loughlin (n 126) is a critique against double monism what he calls the problematic of ‘parallel play’
which is particularly visible in the school of ‘radical pluralism’.
124
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rightly described by Sarmiento as ‘deathly as enriched uranium’.133 A major problem with the theory
of constitutional pluralism is that it does not ensure the equality between the Member States.134
Kelemen is particularly critical towards constitutional pluralism.135 In a text post-OMT decision, he
points out strongly the danger of the dalliance with constitutional pluralism and considered that
the model of constitutional pluralism is fundamentally unsustainable since “in any constitutional
order worthy of the name, some judicial authority must have the final say”.136 For him, “The
contemporary literature on constitutional pluralism has gone too far in the other direction, with its
rejection of the Court of Justice’s straightforward understanding of supremacy. Huge amounts of
intellectual energy, including from leading scholars in the field, have been devoted to developing
conceptual and theoretical foundations for what turns out, ultimately, to be an unsustainable
position”.137 Is this the end of the theory of constitutional pluralism in EU law like it has been the
end of the neo-functionalist movement at one point? It is a difficult question to answer particularly
because the theory of constitutional pluralism as explained earlier is multi-facetted and based on a
multitude of schools.138 It is true, however, that it was easier to be a constituonal pluralist before
the structuring and application of the Honeywell protocol (which requires the sending of a
preliminary reference in the first step). Indeed, it was easier for the FCC and the Court of Justice
to be engaged in ‘parallel play’ without strong direct confrontation. This is not the situation
anymore after the OMT and Weiss situations. But Weiss, we should keep in mind, is also very
different from the OMT decision in the sense that there is no legal and political solutions available
for avoiding and resolving the constitutional conflict at issue. Weiss is a constitutional dead end.
Then what is happening when there is precisely no legal or political solutions for avoiding and
resolving the constitutional conflict – like it is in fact and unfortunately in the Weiss situation?139
Daniel Sarmiento, ‘The OMT Case and the Demise of the Pluralist Movement’, 21 September 2015. See Daniel
Sarmiento, The OMT Case and the Demise of the Pluralist Movement, in Despite our Differences (Sept. 21, 2015).
134
See Federico Fabbrini, ‘After the OMT Case: The Supremacy of EU Law as the Guarantee of the Equality of the
Member States’ (2015) 16 GLJ 1003.
135
Daniel Kelemen, ‘On the Unsustainability of Constitutional Pluralism: European Supremacy and the Survival of
the Eurozone’, (2016) 23 MJECL 136.
136 ibid 139.
137 ibid 150.
138 Ana Bobić, ‘Constitutional Pluralism Is Not Dead: An Analysis of Interactions Between Constitutional Courts of
Member States and the European Court of Justice, (2017) 18 GLJ 1395, 1397. The authors defends constitutional
pluralism and argues for a balanced approach to primacy.
139 See Alexander Somek, ‘Monism: A Tale of the Undead?’ in Matej Avbelj and Jan Komárek (n ) 343–79. Somek puts
the tricky question what happens when the constitutional conflict cannot be prevented or solved?’. According to him
‘constitutional pluralists give up precisely where an answer is most needed: what happens when the constitutional
conflict cannot be prevented or solved?’
133
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Kumm has considered two scenarios140 if a national court would invalidate EU secondary
legislation: the Cassandra scenario and the Pangloss scenario.141 The Cassandra scenario is based on the
prophecy and fear of a major constitutional cataclysm in such a situation. The Pangloss scenario
views the risk of constitutional explosion as more or less inexistent and refutes the domino effect
of such an attitude. Kumm ponders that there are solid grounds to deem that the second scenario
comes closer to depict probable events than the first and argues for a residual and subsidiary role
to be given to the national courts as ultimate arbitrators of fundamental constitutional
commitments.142 However, we may also envisage another scenario particularly in the wake of Weiss:
the Martin scenario (Martin is the pessimistic soul in the famous Voltaire’s book Candide, he also
happens to be the realist in the book). This is an important scenario not to neglect since it is based
on the reality and imminence of a race to the bottom. Indeed, there are no valid reasons to rule out
that a race to the bottom would happen.143 This particularly so when the Honeywell protocol exacerbates
the tension between the FCC and the Court of Justice as seen before in the OMT decision. It is
also tenable to argue that by looking for instance at the European Warrant Arrest144 saga or at the
rule of law crisis in Poland and Hungary that a domino effect is highly probable.145 For knowledge,
Polish and Hungarian governments members of the Ministry of Justice have already supported the
‘ultra vires position’ of the FCC in Weiss.146 This is pathetical.
In the end, it makes no sense to base the source of validity of EU law at the domestic level when
there is a bridge based on domestic constitutional arrangement permitting EU law to travel in order
to play its (primacy) role in the national legal order.147 The ‘ultra vires position’ also destroys the
integrity of Article 267 TFEU by blurring the separation of functions between the Court of Justice
140 Mattias Kumm, ‘The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and
after the Constitutional Treaty’ (2005) 11 ELJ 262. See also Mattias Kumm, ‘Who is the Final Arbiter of
Constitutionality in Europe? Three Conceptions of the Relationship between the German Federal Constitutional Court
and the European Court of Justice’ (1999) 36 CMLRev 351, 375, 384.
141 ibid 291-293.
142 ibid 304. The author proposes that national courts may give precedence to their specific and essential constitutional
provisions for striking EU legislation.
143 ibid.
144
See for more developments, Xavier Groussot, ‘Supr[i]macy à la Française: Another French Exception?’ (2008) 27
Yearbook of European Law 89.
144 ibid. See also Xavier Groussot, ‘Constitutional Dialogues, Pluralism and Conflicting Identities’ in Matej Avbelj and
Jan Komárek, Constitutional Pluralism and Beyond (Hart, 2012) 319.
145 ibid.
146 See the tweet of Polish Deputy Justice Minister Kaleta (5 May 2020, ‘Rule of Law in Poland’) stating: “the EU says
only as much as we, the members states, allow it.” A few days later, on 9 May 2020, the Hungarian Justice Minister
Varga stated in an interview that “the fact that ECJ has been overruled is extremely important” (‘Eastern European
States sense opportunity in German Court Ruling”, 10 May 2020), Financial Times.
147 Weatherill (n 28).
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and the national courts. In addition, it could be contended that if a national court invalidates EU
secondary legislation, then the Court of Justice should have the possibility, in turn, to nullify
national legislation. Symmetry should be respected into order to ensure the coherence of the
system. This is, of course, an unworkable situation. Unfortunately, the growing uses of qualified
majority voting as well as the enlargement have clearly increased the risk of constitutional
frictions.148 As to the new Member States, it is not a secret that most of them boast very powerful
constitutional courts using a system of ex-post constitutional review.149 Concerning qualified
majority voting, the German ‘banana’ case has offered a perfect example of the palpable tension.150
The risk of threat is very high.151 We should prevent the Martin’s scenario. Conflicts on the meaning
and range of primacy cannot be resolved by requiring the Court of Justice and the domestic courts
to jettison their claims. Compromise is necessary and the dialogue is of essence. But is it possible
to reach a compromise after the Weiss case? The answer is unfortunately negative.152
The ruling in Weiss is not constructive and jeopardizes the fragile equilibrium of EU
law. This is even more so in times of rule of law crisis where some national courts are ready to rely
on extreme legal arguments in order to avoid their responsibility to apply EU law in a correct
manner. In this explosive political context, the FCC is not here playing with matches but is playing
with a bazooka when applying his vision of the right ‘proportionality test’. Problematically, the
proportionality test relied on by the FCC in Weiss is construed on a very shaky legal basis and
cannot be applied by the ECB. There is an obvious legal impasse. At the theoretical level and
borrowing the words of Tuori, there is also no perspectivism in the ruling of the FCC.153 Put
differently, the Weiss case is not about a joint cultural heritage or inter-legality since the reliance on
Wojciech Sadurski, ‘Solange, Chapter 3: Constitutional Courts in Central Europe – Democracy – European Union’
(2006) EUI LAW Working Paper No. 2006/40. Available at SSRN: http://ssrn.com/abstract=963757.
149 Miguel Poiares Maduro (n 122) 508-509. According to author, in a situation where of ex-post constitutional judicial
review is lacking, the possibility of conflict between EU acts (other than treaties) and national constitutions is, to a
large extent, eliminated.
150
See BVerfG 102, 147. In the banana case, which dealt with the Regulation 404/93, German undertakings alleged
breaches of Articles 12 and 14 of the Fundamental Law, concerning the right to property, the right to freely exercise a
professional activity and the principle of equality. The Court explicitly relied on the Solange II formula and linked it
with the Maastricht decision. The interesting part of the judgment lies in the interpretation of the requirements for
constitutional complaints regarding secondary Community law. In that respect, the control of constitutionality of
secondary Community law, in conformity with Article 100 of the Fundamental Law, is granted only if detailed
motivations prove that the Community law measure does not guarantee the minimum level of protection of
fundamental rights.
151 ibid.
152 See Section 2(2) for a discussion on the PEPP. A preliminary ruling under Article 267 TFEU might also be sent in
the PEPP context by a German court in order to restore the dialogue in the near future.
153 See Kaarlo Tuori, ‘From Pluralism to Perspectivism’ in Gareth Davies and Matej Avbelj, Research Handbook on Legal
Pluralism and EU law (Edward Elgar, 2018).
148
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the principle of proportionality is clearly based on a national vision of the principle of
proportionality.154 We are facing here a clear situation of potentia (power over) without potestas
(power to).155 This is dangerous from an EU constitutional perspective but is it enough to constitute
the end of constitutional pluralism?
Our view on this matter is that it is not the end yet of constitutional pluralism but
the ruling in Weiss certainly does not help its cause. The criticism on constitutional pluralism will
certainty increase exponentially after Weiss since it shows the limits of the theory of constitutional
pluralism, particularly when it is formulated in its most radical form. The legal impasse in Weiss
opens for a necessary solution of the conflict in a political form at the highest level, i.e it opens for
a necessary reform of the Treaties. Two solutions are available here to tackle effectively the
constitutional crisis created by the Weiss case: either an explicit formulation of a primacy clause in
the new Treaty or the creation of a constitutional mixed chamber at the Court of Justice in the lines
proposed by Weiler and Sarmiento.156 The first solution with a primacy clause would create a federal
framework and integrated model for the European Union but will close for good the schools of
‘radical’ and ‘international’ constitutional pluralism. Un mal pour un bien? The second solution would
allow the possibility to find a legal solution to a potential Weiss situation in the future and create a
‘red line’ so desperately needed between the Court of Justice (through the mixed constitutional
chamber) and the national courts making ultra vires appraisals. Given the circumstances, not to do
anything for the future would be ‘constitutionally criminal’ and would probably lead to the M.A.D.
(Mutual Assured Destruction) of the EU constitutional legal order.
5
CONCLUSION: OUR PROPOSALS FOR REFORM
Contrast the Weiss case with text of the former President of the German FCC Andreas Voßkuhle, ‘Multilevel
Cooperation of the European Constitutional Courts: Der Europa¨ische Verfassungsgerichtsverbund’, (2010) 7
European Constitutional Law Review 175, 198. According to him, ‘the case-law of the constitutional courts that form
part of the Verbund proves to be a discursive struggle for the ‘best solution’, which makes the multilevel cooperation
between the European constitutional courts ultimately a multilevel instance for learning (Lernverbund). The mutually
inspiring further development of the European constitutional culture, which has only been touched upon here, is
extremely promising as regards European integration by constitutional law and constitutional jurisdiction’.
155 Martin Loughlin. Foundations of Public Law (OUP, 2010).
156 Joseph Weiler and Daniel Sarmiento, ‘The EU Judiciary After Weiss – Proposing a New Mixed Chamber of the
Court of Justice’, EU Law Live, 1st of June 2020 (accessed 10 June 2020).
154
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The judgment from the German FCC requires response from the side of the EU. One of these
responses could be an infringement procedure according to Article 258 TFEU. However, this
would solve none of the underlying issues we have outlined above. We therefore propose much
more detailed and nuanced responses in order to avoid the M.A.D. of the EU constitutional legal
order.
In the short term, it will be necessary to address the differences in judicial review at the
national vis-à-vis the European level. This could either be in the form changing the Court of Justice’s
review intensity or by means of secondary EU legislation, requiring all independent EU agencies
to perform a regulatory impact assessment specifically addressing proportionality and subsidiary
requirements of proposed measures. These could help to re-instigate dialogue between the German
FCC and the Court of Justice.
In the longer term and in order to address the structural flaws at constitutional level, it will
be necessary to formally change the European treaties. We suggested that these changes should
incorporate the following:
-
Remedy the artificial delimitation between monetary and economic policies and
putting both on an equal footing, AND
Either adding a primacy clause in the treaty, thus creating a federal framework and
integrated model for the EU at the expense of constitutional pluralism, OR
Creating a mixed constitutional chamber at the Court of Justice according to the
proposal brought forward by Weiler and Sarmiento, which would allow for a legal
solution to any similar Weiss situation in the future
The BVerfG’s judgment may be seen as a thorn in the eyes of the Court of Justice and the
EU as a whole, but if responded to adequately could help to reform these weaknesses of the EU
constitutional legal order to the better.