The European Commission has opened infringement proceedings against Germany because a decision by the Federal Constitutional Court calls into question the rule of EU law. Now the federal government has responded.
It was a great excitement – and now, just in time, the federal government is responding. In early June, the European Commission initiated infringement proceedings against Germany because, in Brussels’ opinion, the Federal Constitutional Court had questioned the rule of EU law. This week, right on time at the end of the two-month deadline, the federal government sent a response to the commission, as the Süddeutsche Zeitung learned from knowledgeable sources. The letter was coordinated between the ministries in Berlin. The EU authority must now verify whether the letter addresses their concerns. Otherwise, the Commission could finally sue Germany before the European Court of Justice (ECJ) in Luxembourg in the framework of the procedure in several stages.
The ground for the infringement proceedings is a May 2020 judgment. In it, the Federal Constitutional Court accused the ECB of failing to provide satisfactory reasons for the necessity of its controversial bond purchases. The judgment, however, left a back door: purchases by Frankfurter Zentralbank are therefore acceptable if the Bundestag and the government deal with the issue and come to the conclusion that the ECB is properly checking proportionality. This is exactly what the government and Parliament did last summer.
Karlsruhe’s “ultra vires” record is a “dangerous precedent” for Brussels
The fact that the Commission nevertheless initiated infringement proceedings was due to something else: the European Court of Justice had previously approved the bond purchases, but the Federal Constitutional Court maintained that this judgment was “ultra vires”, ie. ‘that is to say outside the competence of Luxembourg judges. According to the Commission, Karlsruhe thus calls into question the validity of EU law and Luxembourg judgments in Germany – a “dangerous precedent”, according to the Brussels authority.
The Commission is concerned that other governments and supreme courts may use the judgment as a ground to question the effectiveness of EU law and the judgments themselves. In fact, for example, representatives of the Polish government and judiciary regularly complain that the ECJ rulings allegedly violate the Polish constitution. After all, Warsaw seems to be banking on easing in the dispute over the disciplinary body of judges. The ECJ ruled in mid-July that the chamber had violated EU law because it endangered the independence of the judiciary. If the government does not remedy the situation by August 16, there is a risk of fines. The House is now partially relieved of its functions.