It will be the fight of the 21st century. The file opened this Wednesday by the European Commission to the Federal Republic of Germany is huge news. It will mark a before and after. Its outcome will underline Europe’s federal leap – of its economy, its law and its politics – in the face of its most powerful nationalist rival, the German Constitutional Court (TCA, based in Karlsruhe).
There is no doubt possible. If before the German federation does not legally acquiesce, the Court of Justice of the EU (CJEU, based in Luxembourg) will disarm with a resounding sentence the rebellion of Karlsruhe, which on May 5, 2020 challenged its highest jurisdictional hierarchy. It rejected, disregarded and despised, in an unusual approach, the application of the preliminary ruling of the former, of 2018, favorable to the quantitative expansion launched by Mario Draghi’s ECB three years earlier, in January 2015.
We already detailed on Monday that the TCA rewound this May 18. He surrendered on the content of his resolution, thus ratifying the public asset purchase program of the legendary central banker.
But it is still pending to sterilize the contempt: dangerous, since other courts, illiberal, Polish, Hungarian or pluperfect, already threaten pursuitist and equally seditious purposes, those of overturning the community order, its economy and its legal security.
Why will Luxembourg prevail? He already announced it on May 8, 2020 in a brief and brutal statement recalling that when he issues a “preliminary ruling”, he “binds the national judge” (German, in this case). It forces him, and he must obey.
It will not be a skirmish between robes, but a total war of the community order against national dispersion.
The EU is the bearer of a federal future not only because it makes decisions like those of the ECB or the Next Generation recovery plan. But because it constitutes a community of law at the service of these projects and the values that inspire them.
That community is based on three principles. One is the direct effect of its norms and resolutions: it creates individual rights in citizens that their States must protect (van Gend & Loos judgment, 1963). Another, the primacy of its right over nationals, as enshrined in the Treaty of Rome (article 189, today 288) when describing its regulations as “mandatory in all its elements”, and developed the famous Costa / ENEL sentence of 1964.
To that primacy corresponds, to defend it, the top hierarchy of the CJEU over the others in key matters: it is competent to interpret and decide on the validity of the acts of common institutions, such as the ECB (Article 177, today 19). And any non-compliant partner “will be obliged” to submit to it (171, today 260). It is also ratified by Declaration 17 of the Lisbon Treaty. After surrendering, Karlsruhe will only have to surrender all his weapons.