W.arn’t the cow off the ice? So it seemed when the Federal Constitutional Court rejected the application for the enforcement of its judgment on the European Central Bank (ECB) at the end of April. Karlsruhe accepted the view of the Bundestag and the federal government that the ECB had retrospectively justified a bond purchase program that the judges had considered insufficiently justified in May 2020. That was not a turnaround. The prerequisites for an enforcement order were simply not met. But for now the federal government could sit back and relax.
This is ending now. The EU Commission initiated infringement proceedings against Germany on Wednesday that has little to do with the usual procedures. It’s about the whole thing, about the most fundamental question of all: who has the last word when it comes to European law?
The Federal Constitutional Court itself raised this question in its ECB ruling. It not only questioned the competence of the ECB, but also that of the European Court of Justice (ECJ). The judges in Luxembourg had declared the bond purchase program of the ECB to be legal after they had been switched on by Karlsruhe. However, the Second Senate considered the reasons given by the colleagues to be “objectively arbitrary” and “absolutely no longer comprehensible”. It was the first time that Karlsruhe applied a legal structure that it had developed over the years: the “Ultra Vires” control. From the point of view of the Constitutional Court, it takes effect when a European institution, including the ECJ, exceeds the authorizations conferred on it by the member states.
Ursula von der Leyen, the President of the Commission, immediately rejected this. Just a few days after the ECB ruling, she apodictically declared: “The last word on EU law is always spoken in Luxembourg. Nowhere else. ”This is of course also the opinion of the ECJ, which – unusually enough – also spoke up:“ In order to maintain the uniform application of Union law, only the ECJ, created for this purpose by the member states, is empowered to determine that an act of a Union body violates Union law. “
Why did a whole year go by?
But why did the Commission let a year pass before taking action? A spokeswoman said on Wednesday: You always try to settle disputes in dialogue first. Only if this does not succeed will an infringement procedure be opened. From the von der Leyens area it was also said that they had sought talks “at all levels” last year, with the federal government and with the constitutional court. Even Vera Jourova, Vice President of the Commission responsible for the rule of law, discussed the case with constitutional judge Peter Müller at a public podium in Karlsruhe in July. But none of the contacts brought a solution.