On May 9th, we celebrate Europe Day, a day to praise the achievements, but also a day to raise awareness of the challenges of European integration! The past twelve months were clearly shaped by the COVID-19 pandemic, but another incident shocked the Union’s legal framework. Around this time last year, a decision by the German Federal Constitutional Court (Bundesverfassungsgericht) sent a minor legal earthquake across Europe because it declared that the European Court of Justice had acted ultra vires in upholding the European Central Bank’s PSPP decision. Indeed, the Danish Højesteret and the Czech Ústavní soud preceded the German Court in refusing to follow CJEU judgments. The German FCC’s ultra vires ruling carries political and legal dynamite because of the authority of the German Court among constitutional and supreme courts in Europe and the reservations to European law that other Member States’ highest courts had already developed. It has been predicted that this ruling would open Pandora’s box in making nearly any European act (including any related CJEU judgment) reviewable before a national supreme or constitutional court on the basis of national constitutional law This would be particularly dangerous in Eurosceptic States, allowing their highest courts to refuse allegiance to European Court rulings more easily. What’s at stake is nothing less than the very foundation of the Union, characterised by the primacy of EU law. The ruling excruciatingly revealed the “fundamental paradox” of the Union as a supranational community with the Member States as “Masters of the Treaties”. While the Union is founded by and dependent on the will and transfer of powers by the Member States, the European Court of Justice derives from the founding treaties an autonomous legal order that has outgrown classic public international law.
While the underlying substantial issues of the legal dispute have been settled and the practical effects of the case remained minimal, the implications of the decision continue to smoulder. As expected, a new set of constitutional complaints have been filed against the ECB’s PEPP programme and against the new Own Resources Decision which includes the “Corona Reconstruction Fund” (NextGenerationEU) as a means to overcome the most severe effects of the current crisis. The German Court rejected a preliminary injunction in this case, but it is hard to forecast the decision in the main proceedings. In both cases, the German FCC is likely (and, if it wants to hand down an ultra vires verdict, obliged) to submit questions to the CJEU for preliminary ruling. These cases may eventually trigger the constitutional crisis that some expected from the PSPP ruling. At the same time, the Polish Government has asked the country’s Constitutional Tribunal to decide whether the Polish constitution has primacy over EU law. Luckily, however, the French Conseil d’État, in a recent decision, refused to disobey – as the French Government had wanted - a CJEU judgment and upheld and underlined the primacy of European law.
It appears that the European fabric is crumbling due to a diverging of Member States and their stands towards European integration. The UK’s withdrawal from the Union was the most hurtful example. What we need is a new common understanding on the future of Europe. The EU’s institutions seem well aware: The Conference on the Future of Europe is the attempt to have a sincere discussion among all Europeans on how the Union should develop. At the same time, awareness grows that in a Union of 27 (and more), it is difficult, but not in all cases even necessary to proceed with the same pace. Differentiated integration in the form of enhanced cooperation under Article 20 TEU or the use of the “bridging clauses” still bear a considerable amount of flexibility for the Member States and can serve as a means to reduce tension.
As legal scholar, it appears to us that the political discussion should be accompanied by an academic legal discussion. For a considerable time, European law had been exercised from various national approaches. Today, a new generation of genuine EU law scholars with English as their working language has emerged. It is in this context that we can look with great excitement at various efforts to establish a truly European understanding of EU law. Among these, the German-Italian tandem, composed of Professor Hermann-Josef Blanke (University of Erfurt) and Professor Stelio Mangiameli (University of Teramo) have steered academic research on a common understanding of European law ever since the idea of the European Constitutional Treaty. Their joint opus magnum clearly is the pan-European English-language Commentary on the EU’s primary law foundation. Following the publication of the Commentary on the TEU – which has been received with great interest in the scientific community – the extensive commentary on the TFEU is successively being published at the moment. We hope that this will advance the common understanding of European law in all Member States and beyond, shaping the architecture of the Union so that the (hopefully) last ultra vires judgment becomes a - weighty - footnote. As Pedro Cruz Villalón said in one of his last Opinions as Advocate-General at the European Court of Justice: “It seems to me an all but impossible task to preserve this Union, as we know it today, if it is to be made subject to an absolute reservation, ill-defined and virtually at the discretion of each of the Member States, which takes the form of a category described as ‘constitutional identity’.”
Dr. Robert Böttner, LL.M., is Assistant Professor at the Faculty for Law, Economics and Social Sciences at the University of Erfurt. He has published on German and European economic and constitutional law, notably an extensive study on the instrument of enhanced cooperation and a co-authored book entitled Bridging Clauses in European Constitutional Law (Springer, 2018).
