It will not be said that the Commission headed by the German Ursula von der Leyen will have granted her country preferential treatment. The European Commission launched an infringement procedure against Berlin on Wednesday 9 June, which should give government lawyers a lot of trouble in the coming weeks. The wrath of Brussels is linked to the resounding judgment of the Constitutional Court of Karlsruhe of May 2020, which challenged the validity of a buyback of government debt securities from the European Central Bank (ECB), the PSPP (Public Sector Purchase Program). For the Commission, this judgment violates “Fundamental principles of European law” and creates “A dangerous precedent”, likely to create a “Union à la carte”, she said on Wednesday.
The initiative is surprising, because its conflictual charge is strong in an issue that the German government and parliament believed to have closed in recent months. It is clear that this was not enough to allay the emotion aroused in Brussels by the controversial judgment of the German Court. On May 5, 2020, the judges of Karlsruhe had declared partially unconstitutional both the PSPP debt buyback program of the ECB and the judgment of the European Court of Justice which had validated this program.
For the first time, the judges of Karlsruhe had accused the ECB and the European Court of having acted “Ultra vires”, that is, by going beyond their power. This legal ground applies, in the eyes of the German Court, when a European institution exceeds the competences that the Member States have assigned to it. The decision had caused a real earthquake in the European institutions. In addition to the fact that the judgment potentially risked blocking German participation in the ECB’s debt buyback program in the midst of the Covid-19 crisis, the provocation was mainly on the merits: the German supreme court refused to recognize the authority of the Luxembourg European Court of Justice in this case, considering its judgment as “Objectively arbitrary”.
Sensitive political context
It is this denial of authority that is unacceptable to the Commission. “The last word in European law is always spoken in Luxembourg, and nowhere else”, had decided Ursula von der Leyen a few days after the decision of the German judges. This is certainly not the first time that such a conflict between judges has occurred. On three occasions in the past, the Commission has launched infringement proceedings against countries whose constitutional courts had called into question the primacy of European law – against France, Italy and Spain – which it has to each time won.
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