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Dispute over ECB bond purchases Get together!

As of: June 9th, 2021 6:05 p.m.

It is understandable that the EU Commission is reacting to the Karlsruhe ECB ruling with proceedings against Germany. But that won’t resolve the dispute. Only the courts themselves can do that. A comment from Frank Bräutigam, ARD legal editors If anyone at Karlsruhe’s Schlossplatz had hoped that the high waves after the Karlsruhe ECB judgment of May 2020 would fizzle out silently, they were disappointed today. The EU Commission is initiating infringement proceedings against Germany because of a ruling by the Federal Constitutional Court. ´ That has never happened before. The relationship between Karlsruhe and Luxembourg has always been somewhat tense. But this is now a unique escalation.

Do not lose sight of questions of democracy

The starting point of the Federal Constitutional Court on EU issues is absolutely correct and important. To see that the legal limits remain an important currency at the EU level. Because one must not lose sight of the individual voter, i.e. questions of democracy. Because the individual states have not given up all their competences to the EU. With its “yes, but” approach, the court has achieved a lot in several rulings since the financial crisis in 2012 at the latest. In this specific case of the ECB bond purchase, pulling the emergency brake, accusing the ECB and ECJ of arbitrary action, went too far.

The EU Commission had to react

That was not proportionate: in terms of content, but also with a view to the possible role model effect for other states such as Poland or Hungary. What happens there in terms of content within the judiciary is of course not comparable to Germany. Nevertheless, there is this bare result: The German court does not adhere to what the ECJ says. Then why should we do this? The fact that, from its point of view, the EU Commission must therefore react and initiate a procedure – which is understandable.

Dilemma for several actors at the same time

But you also have to be aware that if you think through the process started today, it will lead several actors into a real dilemma. First of all, the federal government, which now has to take a position as a first step. What is she supposed to do? Somehow signal an independent court to correct its judgment or take other action? And in the last step, the ECJ would decide on a breach of contract. Who? Yes exactly. One of the arguing actors. He would be a kind of judge in his own case. Would that lead to a good solution?

Take “cooperation relationship” at its word

Arguing over who “has the last word” is almost always devastating. In private life, in politics and also within a network of national and European courts. It is the last thing the citizens of the EU need in these times. If the “cooperation relationship” between the courts can be heard in many speeches, this must be taken literally. Mind you: the courts cooperate with each other. Not the courts with the state and the EU. They are supposed to strictly control these two. The fact that there is often still room for improvement at the ECJ on this point has expressly contributed to this conflict.

It is the courts’ turn

An example from the two companies at issue here shows that cooperation is fundamentally possible. Because the First Senate of the Federal Constitutional Court (the Second Senate acts in the ECB conflict) has shown with important rulings from 2019 that Karlsruhe and Luxembourg can achieve control of national and European fundamental rights in the interests of the citizens together. That means: the current situation can only be defused by the courts themselves. Not from the Federal Government or the EU Commission. The actors from the judiciary know each other. Well, actually. You have to pull yourself together. It is unclear what the one solution to the specific dispute should look like, but there has been no lack of creative ideas in Karlsruhe or Luxembourg for many decades.

Editorial note Comments generally reflect the opinion of the respective author and not that of the editors.