GEAB 145

What if the decision of the German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) of 5 May was to become the first key component of a European political and democratic system, rather than a spanner in the works? This was our initial reaction as the media exploded with articles, each more catastrophic than the last, on its repercussions for the future of the euro, the ECB, the eurozone and even Europe as a whole. It must be admitted that the stage is well set in the midst of the COVID-19 pandemic crisis: a closed continent where all the European landmarks seem to have been effectively erased by a bad wind of self-interest (closing borders, stopping travel, ostracism…) and disassociation (the corona bonds dispute, the apparent refusal to mutualise the wall of state debts, the race for a vaccine…).

The German court based its entire judgment on the principle of democracy and popular sovereignty, so as to question the European process that led the ECB in 2015 to launch its State bond purchase programme (a move which is well outside its area of jurisdiction and therefore anti-democratic) and dismiss the judgment of the Court of Justice of the European Union (CJEU), to which it had nevertheless referred for a preliminary ruling.[1] Two attacks were thus made by this decision: one challenging the governance of the eurozone and the place of its almighty Central Bank, the other challenging the degree of supremacy of European jurisprudence over that of Member States.[2]

Both issues are seen as examples of the erosion of the competences of the Member States, questioning the very foundation of the democratic principle and popular sovereignty. The second attack is undoubtedly a much more serious challenge to European unionist principles than one might think.[3] We are not going to go into the details of the German court’s decision, which makes a good job of demonstrating the usurpation of the ECB’s power in its 110 page ruling – probably needed in order to justify its refusal to apply the res judicata authority of the CJEU’s ruling.[4]