Jakab, András

English

<intR>²Dok

The Bundesbank is under a legalobligation to ignore the PSPPJudgment of the Bundesverfassungs-gerichtAndrás Jakab 2020-05-25T15:25:36If there is a situation undermining the rule of law, then it is exactly this: TheBundesbank is under a legal obligation to ignore the PSPP Judgment of theBundesverfassungsgericht (under EU law), and the Bundesbank is under a legalobligation to follow the PSPP Judgment of the Bundesverfassungsgericht (underGerman constitutional law). How has it come to this?When confronted with the question of the supremacy of EU law over nationalconstitutions, the ECJ on the one hand and national constitutional courts, especiallythe Bundesverfassungsgericht, on the other, have always represented irreconcilablepositions. Nevertheless, they managed to prevent a clash that would have damagedthe entire integration process. This was not just mere judicial courtesy: the existingdétente reflected the reality that none of the actors could claim to be ultimatelyright simply because deciding between right and wrong is dependent on the pointof departure one is choosing. The positions are well known and have not changedsince the beginning.1. The ECJ PerspectiveFor the ECJ, supremacy has been a direct and inevitable consequence of the specialnature of EU law at the outset. Already in Costa v ENEL the ECJ made it clearthat EU law “an independent source of law, could not, because of its special andoriginal nature, be overridden by domestic legal provisions, however framed, withoutbeing deprived of its character as community law and without the legal basis of thecommunity itself being called into question” (emphasis added). It is by no surprisethat the exact same wording is used in Internationale Handelsgesellschaft (para. 3)to justify the supremacy of EU law over national constitutions. Later cases involvinga conflict of EU law with national norms of constitutional rank no longer used thespecific term “nature” (Factortame II (para. 22): effectiveness of EU law, Melloni(para. 63): efficacy of the framework decision), but the underlying idea has remainedthe same: without full and unconditional supremacy EU law would no longer be whatit is supposed to be. Naturally, in order to immunise the EU legal system from national constitutionalchallenges, its special nature must inevitably encompass its autonomy fromthe domestic legal systems. Only if EU law and EU law itself can determine therules pertaining to its relationship with the domestic legal system, can national- 1 -constitutional reservations be deemed irrelevant in case of a conflict. Such autonomyhas been stipulated right from the beginning, albeit without elaborating its meaning.Its first mention can be tied already to the era of the European Coal and SteelCommunity, where advocate General Legrange’s 1956 Opinion in Mirrosevich v HighAuthority (ECLI:EU:C:1956:9, p. 399), described the nature of the law of ESCS aspossessing an autonomous character. While the original French version used theterm ‘autonome’, it was translated to English as ‘independent’, taking the edge outof the term. In Van Gend en Loos the ECJ refrained from using the term autonomyand referred rather to “a new legal order of international law”, but Costa v ENEL andInternationale Handelsgesellschaft were based on the premise that the foundingtreaties of the EEC emanate from an ‘independent source’ – “une source autonome”.From time to time ever since, the ECJ confirms (here at para. 166) that autonomyand supremacy are specific characteristic arising from the very nature of EU law.2. The Bundesverfassungsgericht PerspectiveThe Bundesverfassungsgericht has remained more subtle in its argument andhas not so far invoked the nature of the Grundgesetz as ‘constitution’ expressly.Nevertheless, the underlying premise does follow from the supposed characteristicof the constitution being the sole source of all public authority for those underthe jurisdiction of the Federal Republic of Germany. This characteristic isnecessary to postulate the theory of constitutional authorisation (Theorie derverfassungsrechtlichen Ermächtigung), a theory on which all constitutionalreservations towards EU law are based. Only if we accept that sovereign powerscan be exercised in Germany solely on the basis of the Grundgesetz, can weclaim – as the Bundesverfassungsgericht does – that EU law is applied becausethe Grundgesetz commands so. In other words, the gatekeeper function of theGrundgesetz follows directly from the nature of the same Grundgesetz being thefoundation of all public authority in Germany.This character of a constitution might seem self-evident in a state-centredconstitutional theory, nevertheless it runs counter the realities of a supranationalorganisation. What is more, it does not even follow from the wording of Article 24of the Grundgesetz, the integration clause in force at the time the fundamentalrights reservation was first framed in Solange I. On the contrary, as recognisedby the Bundesverfassungsgericht in Solange I (at para. 43), Article 24 (1) ofthe Grundgesetz expressly provides for the possibility of transfer of ‘sovereignpowers’ (“Hoheitsrechte übertragen”) to international organisations. In fact, theBundesverfassungsgericht had to go at length to argue that the language of Article24 (1) GG must be interpreted in the context of the entire constitution, alreadythen referring to the identity of the Grundgesetz. This interpretation allowed for theconclusion that “Article 24 GG does not actually authorise the transfer of sovereignpowers, rather it opens the national legal order (with the stated limitations).” Thisdenial of the possibility of actual transfer of sovereign powers has remainedthe basis of all future constitutional reservations, even though the language ofthe new integration clause, Article 23 introduced in 1992 equally authorises thetransfer of sovereign powers. The Lisbon Judgment (at para. 226 ff.) attemptsto distinguish between sovereign powers (“Hoheitsrechte”) and sovereignty, but- 2 -this distinction fails to explain why the autonomous EU legal system shall remain“derived” (abgeleitet) (at para. 231) in the sense that it cannot take precedence overthe national constitution in those areas where sovereign powers have already beentransferred. The comprehensive and exclusive nature of the constitution and its resultinggatekeeper function vis-à-vis EU law allows for transforming questions ofinterpretation of EU law into constitutional questions, a keen aspiration of theBundesverfassungsgericht ever since Maastricht. The ultra vires reservationtriggered in the PSPP judgment is doing exactly this. Even if the boundariesof the competences of EU institutions follow from the founding treaties, theBundesverfassungsgericht claims the power to ultimately adjudicate about thesebecause, in the eyes of Karlsruhe, it is ultimately a German constitutional issue.The argument leading to this conclusion through the right to vote as well as theprinciples of democracy and popular sovereignty is more than complicated (to putit mildly), especially in relation to an independent institution, like the ECB. But evenif (supposedly) we are ready to accept the twists and turns of the reasoning of thePSPP judgment, they only hold true if we also accept that Germany never gaveaway sovereign rights, only competences ultimately limited by the Grundgesetz.The above is not to say that the theory of constitutional authorisation is per se false,untrue or illogical. And we cannot say that about the autonomist view either. Leavingaside the actual German PSPP judgment and the respective ECJ judgment, bothpositions could be doctrinally coherent if we accepted their respective premises. Thechoice between the two perspectives, at the end of the day, rests on a Werturteilin a Weberian sense, or on a political choice just like Kelsen described the choicebetween primacy of international law and primacy of domestic law.3. The Lack of Mutually Accepted Rules on NormCollisionThat no actual conflict has erupted from these irreconcilable positions can bethanked to the clever judicial politics of Karlsruhe and Luxemburg which tried toaccommodate the basic needs of the competing actor without compromising theirown theoretical foundations. The best and probably most beneficial example of thiswisdom is the Solange II judgment of the Bundesverfassungsgericht, which alsobecame the model of the Bosphorus presumption governing the relationship of EUlaw and the ECHR.The conflict can doctrinally be conceptualised either from an ECJ perspective orfrom a Bundesverfassungsgericht perspective. From the ECJ perspective, there isa clear doctrinal answer: as the PSPP judgment of the Bundesverfassungsgerichtis itself just a national legal act, in case of conflict (which is obviously givenhere) it is inapplicable, therefore the Bundesbank clearly has to ignore theBundesverfassungsgericht judgment (and even an infringement procedure ispossible against Germany). Also from the Bundesverfassungsgericht perspective,there is a clear doctrinal answer: the PSPP judgment has clarified the limits of- 3 -the supremacy of EU law (again), so the respective ECJ judgment is inapplicable,therefore the Bundesbank clearly has to ignore the ECJ judgment. The respectivecollision rules of EU law and German law have always contradicted each other, therehave never been mutually accepted (doctrinal or codified) rules on norm collision.All eyes are on the Bundesbank now. In its first reaction, the Bundesbank expressedhopes that the problem will just go away and the ECB will do what is required bythe Bundesverfassungsgericht. The ECB, however, seems totally unimpressed andconsiders the German judgment as non-binding. Time is ticking for the Bundesbank:the most likely scenario at the moment when we are writing this blogpost is that thethree months deadline (which was set by the Bundesverfassungsgericht) will pass,and the Bundesbank will have to make a choice. Whatever the Bundesbank will do,it will be unlawful: exiting PSPP will breach EU law, staying in it will breach Germanlaw. But even if for some miraculous reason the actual collision situation could beavoided (a sudden major reform finishing PSPP), the old paradigm about handlingnorm collisions is gone. The question, whether the Bundesverfassungsgericht judgment was doctrinally well-argued is equally irrelevant for this problem (for convincing sceptical voices, seehere, here and here), just like it is irrelevant whether the former ECJ judgment wasdoctrinally well-argued. The issue is not how convincing the reasoning in any of thejudgments is. This is now about the rule of law in a situation where legal obligationsconflict each other at the highest level without mutually agreed collision rules. Inthis context, the Bundesverfassungsgericht’s step looks more like starting a chickengame.The PSPP judgment is not a new turn primarily because it would invent a newdoctrine or because it would deviate from the existing case law (even though somedoctrinal steps in the reasoning are quite surprising: we would like to avoid the starkterms that the Bundesverfassungsgericht used about the ECJ judgment). Nor it isnew in the sense the Bundesverfassungsgericht never forbade to fulfil an obligationunder EU law: this boundary was already crossed in 2015 in relation to the executionof a European arrest warrant. It is a turn mainly because it is flagrantly giving up ona paradigm that ensured peace between two of the most important courts in Europe.The paradigm that maintaining one’s theoretical position can be combined with apractical way of living together. The paradigm that the rule of law is diminished ifstate agencies are exposed to contradicting legal obligations both seeking to besupreme over the competing one, and the agencies are forced to make a choice thatwill inevitably be illegal, one way or another. Duly noted, this paradigm has neverbeen of doctrinal nature. It was clever judicial politics in order to preserve importantconstitutional values and European integration at the same time. It is unclear, whatstrategic goal the Bundesverfassungsgericht wanted to achieve with the PSPPjudgment. It is, however, more than likely that this new sort of judicial politics willequally hurt European integration and the rule of law. - 4 -

The Bundesbank is under a legal obligation to ignore the PSPP Judgment of the Bundesverfassungsgericht

https://intr2dok.vifa-recht.de/servlets/MCRFileNodeServlet/mir_derivate_00008593/The_Bundesbank_is_under_a_legal_obligation_to_ignore_the_PSPP_Judgment_of_the_Bundesverfassungsgericht.pdf

The Bundesbank is under a legal obligation to ignore the PSPP Judgment of the Bundesverfassungsgericht

Abstract

Similar works

Full text

Available Versions

<intR>²Dok