by Alessandra Silveira, Editor

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The Arts have always helped the human being to organize the knowledge and to provide a way to understand the meaning of things. The recent decision of the German Constitutional Court[i] on the European Central Bank (ECB) and its Public Sector Purchase Programme (PSPP) has served to create distrust in an atmosphere that is already very sensitive – and it has reminded me an academic episode that shows the role of the Arts in the process of learning. A few years ago, I carefully assessed a paper presented by a Master’s student entitled «Constitutionalism and the principle of primacy of EU law: overcoming the ‘eternal husband complex’». The unexpected title touched on “The Eternal Husband”, Fyodor Dostoyevsky’s literary work. Of course, this needs to be contextualized.

It is said that Russians under czarist rule used to refer in this way, “eternal husband”, to those who never dared to separate from their wives, regardless of the misfortune of the conjugality – from the mere lack of interest to adultery. Adapting the characters to the legal script of integration, the Master’s student explained me his objectives. He wanted to show that the constitutional system of checks and balances which guides the functioning of the EU legal order prevents EU Institutions from betraying the principles that establish and sustain the Member States constitutional paradigm. Therefore, the student argued, there are no credible reasons for resentments and misgivings – and it is urgently required to overcome the “eternal husband complex” of the national constitutionalism.

If we test this argument in light of the concept of European Union as a Union of law, we will conclude that the student may well be right. That legal principle affirms the idea that the Union is based on the rule of law, inasmuch as neither its Member States nor its Institutions can avoid a review of the question whether the measures adopted by them are in conformity with the EU basic constitutional charter – the Constitutive Treaties. Therefore, the principle of primacy of EU law does not qualify each and every EU legal act, but only those issued in accordance with the Constitutive Treaties – and the ECJ is solely responsible for assessing this validity. According to Article 19(1) TUE, the ECJ shall ensure that in the interpretation and application of the Treaties the law is observed, i. e., the ECJ is who decides on the scope and the exercise of the EU competences.

This was brilliantly explained in the Opinion of the Advocate-General Miguel Poiares Maduro in the paragraphs 15 and 16 of the Arcelor case C‑127/07 (delivered on May, 21, 2008) in which the “constitutionality” of a directive was challenged – and that is worth recovering in these turbulent times. This case provided an opportunity for the ECJ to specify the nature of the relationship between national constitutions and EU law and to dispel certain fears of a possible conflict – which are wholly unjustified given the common constitutional foundations on which the national and EU legal orders are based. As Poaires Maduro stated, the EU and the national legal orders are founded on the same fundamental legal values. While it is the duty of the national courts to guarantee the observance of those values within the scope of their constitutions, it is the responsibility of the ECJ to do likewise within the EU legal order.

Constitutive Treaties express the respect that is due to national constitutional values and also indicate the best way to prevent any real conflict with them, in particular by anchoring the constitutional foundations of the EU in the constitutional principles common to the Member States. Through Articles 4(2) and 6(3) TEU the Member States are reassured that the law of the EU will not threaten the fundamental values of their constitutions. At the same time, however, they have transferred to the ECJ the task of protecting those values within the scope of EU law. That structural coherence can be guaranteed only organically and only at the EU level, through the mechanisms provided by the Treaties.

That organic identity ensures that national constitutions are not undermined, even though they can no longer be used as points of reference for the purpose of reviewing the lawfulness of EU acts. If they could, in so far as the content of the national constitutions and the instruments for protecting them vary considerably, the application of EU acts could be subjected to derogations in some Member States but not in others. Such an outcome would be contrary to the prohibition of discrimination on grounds of nationality provided for in Article 18 TFEU – because EU law cannot change from one Member State to the other; and, in particular, it would be contrary to the understanding of the EU as a Union based on the rule of law.

Therefore, the effect of being able to rely on national constitutions to require the selective and discriminatory application of EU law in the territory of the Union would, paradoxically, distort the conformity of the EU legal order with the constitutional traditions common to the Member States. That is why, in the Internationale Handelsgesellschaft case 11/70 (December, 17, 1970), the ECJ held that “the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure”. The primacy of EU law is therefore indeed a primordial requirement of the legal order of a Union based on the rule of law.

The recent decision of the German Constitutional Court is especially incomprehensible because the ECJ was questioned by the former court on the validity of the ECB program in the Weiss case C‑493/17 (11 December 2018); it was at stake the validity of Decision (EU) 2015/774 of the ECB (on a secondary markets public sector asset purchase programme), as amended by Decision (EU) 2017/100 of the ECB, and the interpretation of Article 4(2) TEU and Articles 123 and 125 TFEU.

The applicants in the main proceedings argued that the decisions of the ECB in question together amount to an ultra vires act, inasmuch as (i) they fail to observe the division of competences between the EU and the Member States provided for in Article 119 TFEU, since they do not fall within the scope of the ECB’s mandate, as defined in Article 127(1) and (2) TFEU and Articles 17 to 24 of Protocol No 4 on the Statute of the European System of Central Banks (ESCB) and of the ECB, and (ii) they infringe Article 123 TFEU. They also argued that those decisions infringe the principle of democracy laid down by the German Basic Law and thereby undermine German constitutional identity.

ECJ ruled that the “consideration of the questions has disclosed no factor of such a kind as to affect the validity of Decision (EU) 2015/774 of the ECB”. The ECJ was particularly incise about the “allegedly reduced impetus to conduct a sound budgetary policy” (paragraphs 129 a 144). The German Constitutional Court asked whether Decision 2015/774 was compatible with Article 123(1) TFEU inasmuch as the certainty that that decision might create with regard to the ESCB’s intervention may distort market conditions by reducing the impetus for Member States to pursue a sound budgetary policy. ECJ considered that the adoption and implementation of such a programme may not create certainty regarding a future purchase of Member State bonds. In this sense, the ESCB has, in its successive decisions, provided for the purchase of government bonds only in so far as necessary for the maintenance of price stability, that it has regularly revised the PSPP volume and that it has consistently preserved the temporary nature of that programme. Accordingly, Decision 2015/774 does not enable the Member States to determine their budgetary policy without taking account of the fact that, in the medium term, continuity in the implementation of the PSPP is in no way guaranteed and that they will thus be compelled, in the event of a deficit, to seek financing on the markets without being able to take advantage of the easing of financing conditions that implementation of the PSPP may entail.

In this sense, if the German Constitutional Court had any questions about the ECJ judgment, a new preliminary ruling could have been submitted. However, the German Constitutional Court preferred to subject itself to a possible infringement procedure[ii] due to, an irony of fate, having committed an ultra vires act. Moreover, the ECB is not under the jurisdiction of the German Constitutional Court – and does not need to comply with the German Constitutional Court’s demands.

So, it is difficult to know what is the purpose of the German Constitutional Court in the face of this Freudian “death instinct”, especially having in mind the timing of the decision and the vicissitudes of the EU response to the coronavirus situation. Of course, I do not desire the existence of courts that choose “the right moment” to decide according to any outside influence besides the own process time; therefore, I am talking about EU law unit, integrity, effectiveness – especially because this is more important now than ever. It is possible that this decision is opening up “a dangerous path to be explored by illiberal regimes in the EU”.[iii] It cannot ignore that the constitutional courts usually “writes politics by legal lines”. Sometimes, are good politics; at others, not even this. Perhaps Fyodor Dostoyevsky can provide a better explanation.

[i] See https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2020/05/rs20200505_2bvr085915en.html

[ii] See https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-05/cp200058en.pdf

[iii] See Miguel Poiares Maduro, Some preliminar remarks on the PSPP decision of the German Constitutional Court, Verfassungsblog on matters constitutional, May, 6, 2020, verfassungsblog.de

Picture credits: Bundesverfassungsgericht… by Mehr Demokratie.