13 Mai 2020

Suing the BVerfG

Delivered just 4 days before the 70th anniversary of the Schuman declaration, the 5 May 2020 ruling of the German Bundesverfassungsgericht (BVerfG) – declaring illegal the quantitative easing program of the European Central Bank (ECB) and nullifying a prior judgment of the European Court of Justice (ECJ) – has sent shockwaves through the EU constitutional system. However, the judgement has also triggered strong responses. On the same day, the ECB firmly replied that its action had already been upheld by the ECJ, which it obeys. On 8 May 2020, the ECJ in a terse press release reminded the public that it has the sole power to strike down EU acts, and that the supremacy of EU law is the only way to guarantee the equality of the member states in the union they created – a position confirmed also by one of the Presidents of the Bundesgerichthof in a highly critical commentary of the judgment of its fellow German judges. And on 10 May 2020, the European Commission President Ursula von der Leyen backed up the ECJ statement and announced that its services were evaluating the option to start infringement proceedings.

In fact, it is the argument of this blog that the Commission must activate the procedure of Article 258 TFEU and sue (Germany for the grave breach of EU law by) the BVerfG. As I maintain, this action is constitutionally necessary, legally sound, and it may ultimately help achieve an important integration function – neutralizing the minefield that the BVerfG built around the future of Europe.

Following the BVerfG judgment, an infringement proceeding is the minimum the European Commission can do preserve the legal order as created by the EU treaties, of which it is the guardian ex Article 17 TEU. Indeed, disobedience against prior judgments of the ECJ is not unprecedented. In 2012 the Cezch Constitutional Court set aside the ECJ ruling in Landtova, and in 2016 the Danish Supreme Court refused to abide by the ECJ ruling in Ajos. However, those cases were pretty specific. They related to secondary legislation. And they were also admittedly delivered by member states which are at the margin of the EU core, being inter alia outside the Eurozone. On the contrary, the BVerfG ruling targeted the monetary policy of the ECB, which is exclusive competence of the EU. It facially called into question the principle of the supremacy of EU law. And it was delivered by an influential institution – which is looked at as a model worldwide – in the largest and economically more powerful member state of the EU. Commission President Ursula von der Leyen, a German herself, is therefore rightly keen to make sure this is not taken lightly.

At the same time, an infringement proceeding would be legally well grounded in the circumstances. EU law has long recognized the responsibility of member states for breaches of EU law resulting from action by its highest judicial authorities. In the leading case Köbler v. Austria, of 2003, the ECJ found Austria in breach of EU law due to the failure by its highest administrative court to give due regard to EU law in one of its rulings. In fact, failure to give regard to EU law by the highest national courts also led to infringement proceedings in Commission v. Italy. This 2011 judgment culminated a complex judicial saga, which had been originated by the failure by the Italian Court of Cassation to abide by EU state aid rules. In Traghetti del Mediterraneo the ECJ held that national legislation excluding the responsibility of the state for breaches of EU law caused by its top courts was incompatible with EU law, and given the failure by Italy to comply with that judgment the Commission started infringement proceedings, which resulted in another ECJ ruling in 2011: this held that by excluding all liability for damage caused to individuals through an infringement of EU law on the part of a court adjudicating at last instance Italy had breached its treaty obligations. As such, going after the BVerfG for its 5 May judgment would surely be not unprecedented.

Of course, an infringement action would not be taken against the BVerfG itself – but rather against the Federal Republic of Germany. Article 258 TFEU proceedings are levied against member states –which for the purposes of this action are seen as unitary actors. Practically, then, the task of defending the state in the front of the ECJ would fall to the Bundesregierung. This may sound a little unfair, considering that the German Federal Government has done little wrong here. In fact, prominent members of the parliamentary majority that leads Germany – including the Chairman of the Bundestag Foreign Affairs Committee Norbert Röttgen, and, albeit with many nuances, also the President of the Bundestag Wolfgang Schäuble, have criticized the ruling of the BVerfG.

And yet, here is precisely where the role of an infringement proceeding can become particularly valuable from the long-term prospects of European integration. For it has become clear that the BVerfG is now an obstacle to further steps towards ever closer union and that the German political elite is unable to overcome this form of judicial aggrandizement without a little external help.

On the one hand – since the early 1990s and increasingly in the last decade– the BVerfG has raised its voice in its rulings on EU matters and built a battery of constraints on further EU integration.  Through its Maastricht Urteil, the Lissabon Urteil and the judgments on the composition of the EP, the ESM Treaty and the ECB action among others, the BVerfG significantly limited the ability of Germany to participate in the EU, and conversely on the EU to move forward. Yet, this anti-European jurisprudence of the BVerfG is built on thin air. In particular, the judge-made reading that the Basic Law’s right to vote clause can be interpreted as an open-ended, catch-all enablement to review EU legislation is as insult to the post-war founders of the Republic, which nowhere set state sovereignty as an obstacle to the development of an EU in which Germany participates as an equal partner. In fact, the BVerfG stance is surely not justified in light of the constitutional history of the German state – which, inter alia, only regained its full sovereignty in 1990.  

On the other hand – despite this situation that many regarded as annoying – the German political class has not mustered the courage to rein in an overbearing BVerfG, which is highly regarded among the populace. And so there has been no political leadership to bring back the BVerfG to where it institutionally belongs – as an organ that should review the action of German public authorities for compliance with the German basic law, no less no more.

The infringement proceeding de quo, however, could become a crucial asset in the effort to break domestic paralysis and trigger internal change. If the Commission were to bring the case, as it is hoped, and if the ECJ were to approve it, as it is likely, then the German Federal Government would be under an EU (and international) obligation to implement the ruling, changing its domestic law. And this would require addressing face-on the arbitrary power that the BVerfG has claimed for itself. Indeed, this is also the lesson of the abovementioned Commission v. Italy case. While – for historical reasons connected to the post-Mani Pulite clash between judges and politicians in Italy– the Italian Parliament had been unable to amend the 1988 law on the liability of judges to include cases of damages for breaches of EU law, the ECJ judgment in the Commission infringement proceeding gave coverage to legislation that, in 2015, eventually amended domestic law to introduce a claim of liability of judges for breaches of EU law. In a similar vein, an infringement proceeding against Germany could give legal coverage to take domestic remedial action against the BVerfG. And incidentally it would also mark the difference from what the Hungarian and Polish governments are doing: while the latter are reducing national judicial power against EU law, here German authorities would reduce the powers of the BVerfG in execution of EU law

To achieve this objective, changes to German legislation would not suffice. Likely the implementation of an adverse ECJ ruling would require the German Government and Parliament to amend the Basic Law. But the Tanja Kreil case is a living proof that Germany already had to amend its Basic Law to comply with an adverse ruling of the ECJ – in casu holding that the prohibition for women to serve in the army then set in Article 12 was in breach of the EU gender equality directive. This could give the opportunity to spell out in German constitutional law that the powers of the BVerfG do not extend to challenging the validity of EU law in Germany. In fact, the model Germany could look at is the Irish Constitution, which at Article 29(4)(6) – as last modified – states that “No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State […] that are necessitated by the obligations of membership of the European Union […] or prevents laws enacted, acts done or measures adopted by (i) the said European Union […] or institutions thereof […] from having the force of law in the State.” This clause, which is a comparative example of best practice, could neutralize the minefield planted by the BVerfG, giving constitutional protection to the EU and its laws within the German legal system. 

In sum, the BVerfG pronouncement on 5 May 2020 has created a dynamic outside its control. The strong reactions to the ruling, and the indications by the European Commission that it may start infringement proceedings signaled that the BVerfG cannot expect to get away easily for what it did. In fact, as I have argued, the Commission must start infringement proceedings, and has a strong legal case to do so. Moreover, “suing the BVerfG” may actually prove crucial to embolden the German democratic branches of government to take measures to contain the overreach of the BVerfG. If an infringement proceeding were to result – as it most certainly would – into an ECJ judgment ruling Germany in breach of EU law, state authorities could implement that judgment by constitutionalizing in the Basic Law the supreme principle that EU law is not subject to BVerfG review for as long as Germany remains a member of a union it so fundamentally helped create


SUGGESTED CITATION  Fabbrini, Federico: Suing the BVerfG, VerfBlog, 2020/5/13, https://verfassungsblog.de/suing-the-bverfg/, DOI: 10.17176/20200514-013534-0.

14 Comments

  1. Max Nauer Mi 13 Mai 2020 at 21:53 - Reply

    I am not sure whether the ECJ should consider the judgment itself a violation of the Treaties. It would only be a violation if the BVerfG rendered the judgment as a court. The ECJ, however, could presume that a court of a Member State would not deliberately ignore a judgment from the preliminary reference procedure. As a consequence, the BVerfG must have instructed the Central Bank and the German government to do things not in its capacity as a court but as a political institution.

    From the „autonomous EU law point of view“ what happened would thus look as follows: The BVerfG asked for a preliminary ruling. It then decided to discontinue the proceedings. Shortly afterwards, it acted as a political body that happens to exist under the German constitution and ordered the government to try and change EU law, which is a perfectly legal thing to do.

    This would – for now – avoid an escalation of the conflict about the supremacy of EU law that neither side can win and it would perhaps pre-empt ultra vires challenges from other „courts“ that have rule of law issues by depriving them from being a court at all.

  2. Onserver Mi 13 Mai 2020 at 23:37 - Reply

    Such a step would mean nothing less than risking a German exit out of the EU. The judgment of the BVerfG and its jurisprudence of the possibility of an ultra vires and identity control are based on constitutional norms which the government couldnt change or amend even if it wanted to as they are based on the eternity guarantee of art. 79 para 3 Basic Law. I strongly dislike the judgment but an infringement proceeding based on this judgment is a horrible idea, which has the potential to end the EU as it is.

  3. Kir C. Berg Mi 13 Mai 2020 at 23:42 - Reply

    I could not disagree more. This suggestion is ill advised, both legally and politically. Let us start with the law: what is the infringement that is contested to the DE Govt? The blog post is very unclear, if not totally vague, on this KEY point. Let us not overlook that, simplifying to the extreme, the BVG has (i) decided that the ECJ acted ultra vires, and (ii) possibly also the ECB. However, with regard to the latter, the BVG did not have enough info and thus asked the DE Govt and the BuBa to act in order to clarify the situation. So, substantive breaches have not yet materialised. They will only if and when the DE Govt and BuBa stop participating in the QE programmes. However, the author should know that, according to settled case-law, the COM cannot start an infringement action (not even at the administrative stage) before an infringement takes place. The action is otherwise inadmissible. So, the only infringement that (allegedly) has NOW materialised is the breach of the authority of the Court / non respect of a Court’s judgment / primacy of EU law. What provisions of the EU Treaties, to be precise, has the German State breached because of the BVG judgment? The author does not say this. In fact, it all derives from general principles developed in the case-law. Perhaps one could invoke Art. 19 TEU, surely one can add 4(3) TEU to the mix (loyal cooperation always helps)… still, there is nothing very clear and straightforward in this. So, we are only left with the breach of Court’s authority/binding nature of the Court judgment/primacy. What would that entail? This case, put very simply, would basically mean that the Court would have to focus (only) on the fact that one of its judgments has been declared ultra vires by a constitutional court deal. In other words, the Court would have to review the ultra vires doctrine in order to determine whether that doctrine is compatible or incompatible with EU law. Does Mr Fabbrini think that the Commission and/or the Court would ever want to engage with this issue? This is not a hot potato but a burning potato. From the perspective of an EU lawyer, the answer may perhaps be easy: that is incompatible. However, from the perspective of any constitutional lawyer the answer is very obviously the opposite. Mr Fabbrini, give it a thought: in your view, could a sovereign State transfer some competences to a supranational organisation without reserving itself the task of checking that that supranational organisation does not trespass, and act in open and blatant breach of its constitution? Is not it obvious that neither Germany nor (I believe) any other Member State could do that. For this reaon (and here policy/politics comes in) it is much wiser that the Court has never ever to pronounce itself on the theoretical acceptability of the ultra vires (in your country, Italy, ‘controlimiti’) theory. The Court could only say ‚NO‘ and that ‚NO‘ would not be acceptable to any constitutional court in the Member states. This would thus, politically, escalate the situation and open a huge rift between national courts and the EU Courts. Sorry, I enjoyed some writings of his but, in this case, I can hardly see a suggestion more ill-advised than that of Mr Fabbrini.

    • An European lawyer Mo 25 Mai 2020 at 19:37 - Reply

      „in your view, could a sovereign State transfer some competences to a supranational organisation without reserving itself the task of checking that that supranational organisation does not trespass, and act in open and blatant breach of its constitution? Is not it obvious that neither Germany nor (I believe) any other Member State could do that.“

      It is not only a possibility but a requirement. You cannot have an Union of States with a common law if there is no common Court having the last word on the validity of this common law. Otherwise, your Union of States is almost of no use.

      If a State think that a common law provision hurts its core principles (which is obviously not the case with regard to the monetary policy of the ECB and the Weiss judgement by the way), then it may leave the Union of State, or, better, let the people choose just like the UK did (and Switzerland did a lot of time in its relationship with the EU). But playing by our own rules and having in consequence no respect for the sovereignty of the other Members of the club cannot be accepted.

  4. Lars Do 14 Mai 2020 at 00:30 - Reply

    The post is wrong on its assessment that Germany could comply with a treaty infringment procedure by changing the Grundgesetz. The ruling of the BVerfG is partly based on Article 20 of the Grundgesetz, an article which according to Article 79 cannot be changed. Germany would have to adopt a new constitution to comply. Given the popularity of the Grundgesetz, this surely won’t happen, thus defeating the whole argument of this blog post.

  5. V.Wendt Do 14 Mai 2020 at 07:57 - Reply

    A sentence like this is self-exposing: „For it has become clear that the BVerfG is now an obstacle to further steps towards ever closer union and that the German political elite is unable to overcome this form of judicial aggrandizement without a little external help.“ At least at the moment we don´t have the „United States of Europe“. Therefore the BVerfG has the mandatory to secure German Constitution.

    By the way is the „ever closer union“ a political aim. It cannot justify violations of EU-contracts. However that is what the EJC regulary does. Its case law has a strong tendency to overstretch the treaty bases. So who protects us from the case law of the ECJ? This can only be the BVerfG, which has to control Germany’s „accession agreement“ (Art. 23 GG).

    I would like to see European law experts take a closer look at the role of the EJC, which must be viewed critically.

  6. Dr. Ulrich Kaltenborn Do 14 Mai 2020 at 09:58 - Reply

    It is amazing to see how the majority of writers here avoid the actual subject of this blog (constitutional matters) in favour of mere political considerations.

    Here is the unpolished core of the ideology behind most of this (many thanks for your honesty Mr. Fabbrini): “For it has become clear that the BVerfG is now an obstacle to further steps towards ever closer union and that the German political elite is unable to overcome this form of judicial aggrandizement without a little external help.”

    Fabbrini carefully avoids to even mention the BVerfG’s main point: Articles 20 and 38 of the German constitution. If Germany accepts any extension of competences of any Institution (in this case the ECB) without democratic legitimization in Germany, this is a breach of the German constitution. Just like an infringement against Germany wouldn’t aim at the BVerfG but at the federal republic of Germany, the BVerfG’s ruling doesn’t aim at the ECB but at Germany as well.

    So unlike other refusals by EU countries to obey ECJ rulings (as far as I am aware of) this case touches fundamental constitutional matters in Germany. But in Fabbrini’s stance, insisting on the democracy principle is an “insult to the post-war founders of the Republic”. May I remind you that these articles of the German constitution were implemented precisely in regard of the Nazi regime and the way the Nazis managed to overcome the Weimar Republic?

    Fabbrini’s ignorance about German constitutional principles becomes even more obvious when he recommends that Germany should adopt article 29 from the Irish constitution: “No provision of this constitution invalidates (…) measures adopted by the State (…) that are necessitated by obligations of membership of the European Union.” A clause like that is in direct contradiction to articles 20 (the German public is the only sovereign: “Alle Staatsgewalt geht vom Volke aus”) and 38 (the German Parliament executes this power on behalf of the German Public).

    Consequently articles 20 and 38 would have to be changed in order to implement this clause. This, however, would be illegal per se, that is by application of article 79 (3) of the German constitution, stating that, among others, article 20 cannot be changed. Furthermore every German citizen has the outspoken right to resist against any violation of these principles, as granted by article 20 (4). Period.

    Germany is entangled in a conflict of loyalty between the EU and its own constitution, that is in principle unsolvable. The rest is politics, that means power struggle. I am sure the EU officials would overestimate their power, influence and reputation, if they should really think they can atack the basic constitutional principles of Germany by an infringement procedure.

  7. Oliver Do 14 Mai 2020 at 17:29 - Reply

    Unfortunately, the text does not focus on the main questions: 1. is it true that the competence of the EU merely derive from the principle of conferred powers? (yes, Art. 5 TEU), 2. Who decides ultimately about wether competence has previously been conferred by the member states (remains to be seen) 3. Do the MS not have at least the right to claim an act of the EU is ultra vires? 4. Doesn`t, as the president of the senate of the BVerfG stated himself, the mere idea of conferred powers and thus an ultra vires idea entail the possiblity that the EU acts in fact ultra vires? If no action is ever to be found ultra vires, then the concept itself becomes irrelevant. Now, I am strongly favoring the idea of an more democratic and independent state-like Union. But for now we have to acknowledge the fact that the MS decide on the scope of competence of every EU act.

  8. meine5cent Fr 15 Mai 2020 at 10:52 - Reply

    Thank you,Mr. Fabrini, for explaining to the German People and the BVerfG what our constitution does mean to us, what it aims at and what „future of the EU development“ (who by the way is entiteled to develop and define the shape of this future?) Court and People will have to accept without moaning (based on which legal provisions and powers transferred to EU?)

  9. Jens Fr 15 Mai 2020 at 11:08 - Reply

    If the distinction between monetary policy, fiscal policy and economic policy is not intelligible, then the independent institution with the task of monetary policy becomes very powerful and difficult to calculate. The ECB can theoretically buy all assets that have a value in euros unlimitedly if it finds a way to subsume these purchases under its mandate. And practically every such measure will have a monetary, fiscal and economic impact. Should it be enough if the ECB describes the monetary impact channel?

  10. Giovanni Sa 16 Mai 2020 at 19:53 - Reply

    I read very harsh comments on Prof. Fabbrini’s contribution.
    It seems to me that this contribution highlights (naturally in a questionable way) two important points.
    1. What can someone who does not share the Court’s judgment do to try to clarify it?
    2. What can those who do not share the Court’s judgment do to clarify Germany’s position on the EU ?
    On the first point, an action by the Commission under art.258 TFEU could be appropriate, so that the evaluation of what happened can go back to the Court of Justice.
    This action is questionable, perhaps there may be better remedies, but it is a serious possibility.
    For very minor issues, towards other countries, usually small countries, this procedure has been activated.
    On the second point, if the German Constitution affirms that in international treaties and in the unions of states Germany is more equal than the others, as some animals in the Animal Farm, and this claim cannot be interpreted, eliminated or corrected, it is right that the other Europeans know it in a clear way.
    Furthermore, it is fair enough to ask whether this interpretation of the German Constitution „is an insult to the post-war founders of the Republic“ (although the emphasis is questionable).
    The foregoing are legal and constitutional points, not political ones. There could be political effects of these legal and constitutional positions but on this issue the political effects cannot be totally eliminated.
    It would be interesting to clarify what are the alternatives to what Fabbrini says.
    It is clear that if the „ECB Governing Council adopts a new decision that demonstrates in a comprehensible and substantiated manner that the monetary policy objectives pursued by the ECB are not disproportionate to the economic and fiscal policy effects resulting from the programme“
    it risks losing its autonomy and undermining the authority of the Court of Justice. In addition, each national Constitutional Court could put the ECB „under accusation“ for this and that consideration of economic policy, in spite of the distinction between economic and monetary policy.
    Regardless of what anyone can think of, it is a issue that needs to be clarified

    • V. Wendt So 17 Mai 2020 at 12:13 - Reply

      German Constitution doesn´t assume „that in international treaties and in the union of states Germany is more equal than the others“. Another problem is at the heart of this conflict: The European Union has been given very specific rights by the states. The national institutions must ensure that only these rights are exercised, and above all, in a manner consistent with the Treaties. This obligation is exercised by all the national constitutional courts.This is not a particular feature of the case law of the German Federal Constitutional Court.

      • An European lawyer Mo 25 Mai 2020 at 19:29 - Reply

        And what do you do if the French Supreme Court interprets EU Law in the exact opposite way of the Bundesverfassungsgericht and gives the order to the „Banque nationale de France“ to print as much euros as the Court see fit?

        There is a very convincing argument to have only a common court deciding over the validity of an Union of States. It is indeed the cases in every Union of States, from the US, to Switzerland, both are much older than the German federal States or the Bundesverfassungsgericht.

  11. An European lawyer Mo 25 Mai 2020 at 19:25 - Reply

    The harsh comments against the author are not justified.

    The best way to act is indeed the infringment procedure, as the refusal of the Bundesverfassungsgericht to apply the Weiss ruling is an infringment itself (and an extremely severe one).

    A German Court should not be able to decide if a Union act is valid or not. Only a common Court may have this power. Basically it is quite simple: It is not for seven German judges to decide for the 350 millions people of the eurozone what kind of monetary policy should be enacted.

    Would the Bundesverfassungsgericht accept that the Verwaltungsgericht (administrative court) of Bavaria (which never ratified the Grundgesetz) refuse to apply German federal law of give orders to the Bundesbank? Would the Germans accept that the Italian or the Greek Supreme Court give (direct or indirect) orders to the ECB, for example the order to print money and buy national debt?

    Should Germany not be happy with the huge power it exerces over the EU, then use the 50 TEU and goodbye. But as long as you are part of the club, you have to respect the most basic rule of it, i.e. that only a common referee, the ECJ, has the last word over the validity of common European law. Otherwiese, you violates the souverainty of the other 26 Member States. For example, a German judge should never have the power to decide what monetary policy applies in France or Italy. Albeit it is exactly what the Bundesverfassungsgericht is trying to do: reshaping ECB monetary policy to better suits German interests (in the short term at least).

    As for the ruling itself, it is ill-designed. The judges make fun of the ECJ ruling but their judgement obviously violates the ECB/Eurosystem independance (toward Member States), which Germany so absolutely wanted during the negociations of the Maastricht treaty. It uses the democratic principle of the GG so that its own intepretation of EU law supersedes the (far more pramatic and convincing) one of the ECJ. I am however not able to see how more democratic is the fact that seven German judges think they can decide for the European of the German people or/and their representative. In fact, it seems that it is the exact opposite of democracy and that the position of „Bundestag n. 2“ of the Bundesverfassungsgericht in Germany has made it too arrogant over the last decades.

    Now the ECJ and the Bundesverfassungsgericht have no other choice that to engage in a death battle until either the first one prevail, or the EU is detroyed with all national courts, especially the French, Spanish and Italian ones, refusing to apply EU Law when it does not suit the interests of their own State.

    In my view, the Bundesverfassung judgement is of a level of the Dred Scott v. Sandford of the US Supreme Court, which struck down the Missouri compromise and led to the civil war: an awful stupidity full of ideology and arrogance.

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