The EU Commission believes that the Federal Constitutional Court's ruling on the European Central Bank's bond purchases in Germany has violated fundamental legal principles and is therefore opening treaty infringement proceedings against Germany.

The spectrum of reactions to this spectacular decision ranged from support to shaking the head in Brussels on Wednesday; in Germany, the plaintiffs in the Karlsruhe proceedings in particular expressed sharp criticism.

Corinna Budras

Business correspondent in Berlin.

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    Werner Mussler

    Business correspondent in Brussels.

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      “With this, the Commission poses the ultimate question of law and power in the EU”, criticized the economist and AfD co-founder Bernd Lucke, who fought for the Karlsruhe decision on the PSPP bond purchase program around a year ago.

      “She wants to enforce that the most important identity core of the national constitutions is overlaid by EU law.

      In doing so, the Commission is provoking enormous conflicts in the EU because it treats its sovereign member states like subordinate member states. "

      Gauweiler: Brussels is harming itself

      The former CSU politician and plaintiff Peter Gauweiler also insists that Germany retain the option of intervening in extreme exceptional cases. The "Ultra-Vires principle" developed by the Federal Constitutional Court, which limits the competences of EU institutions and especially the European Court of Justice, is applicable constitutional law that cannot be the subject of infringement proceedings, Gauweiler told the FAZ. "All EU contracting states know that Germany would never have agreed to the Lisbon Treaty without observing this principle. ”The fact that EU organs can only act within their competencies and not be moved from Brussels has been the basis of the treaties so far. The EU Commission is damaging itself by opening the procedure,"Because by disregarding the popular sovereignty of its member states and the principle of democracy, it further strengthens doubts about its own contractual loyalty," said Gauweiler.

      Markus Kerber, economist and lawyer from Munich, who is also a plaintiff in Karlsruhe, said he was happy about the infringement proceedings, "whose significance is likely to be the intimidating effect on Karlsruhe".

      "Europe à la carte"

      As a justification for its move, the EU Commission cites that the Federal Constitutional Court has questioned the primacy of European law in its case law.

      This priority is laid out in the EU treaties and spelled out in many decisions by the European Court of Justice.

      What is in question, however, is under what circumstances it applies.

      The “ultra vires” doctrine of the Karlsruhe judges is practically a violation of EU law.

      If that catches on, it could lead to a “Europe à la carte”, said a Commission spokesman. However, European law must be applied equally everywhere and for all citizens. A lack of understanding prevailed in Brussels, also with regard to the timing. According to the Karlsruhe ruling, the Federal Government and the Bundestag should work to ensure that the ECB retrospectively checks whether the bond purchases were proportionate. That has now been done, as the Constitutional Court itself confirmed at the end of April. So one could have let the conflict rest.

      But from the point of view of the EU Commission that was not possible because others are now using the German judgment for themselves. The Polish Prime Minister Mateusz Morawiecki had already spoken in 2020 of “one of the most important judgments in the history of the European Union”. At the end of May, the Luxembourg judges ordered Poland to stop the mining of lignite in the Turow open-cast mine. But Morawiecki disagreed. The head of government said at the time that the energy security of Polish citizens will not be jeopardized "just because someone in the (European) Court of Justice has made this or that decision". According to an explanation from the EU authority, this conflict is the actual background to the opening of the proceedings.

      The procedure is formally addressed to the federal government. Of course, the Commission would like the assurance not only from this, but above all from the Karlsruhe judges, that it will not shake the primacy of EU law. Because of the judicial independence and the self-image of the Federal Constitutional Court, this wish is unlikely to come true. That is why many Brussels observers are wondering what might happen at the end of the process.

      The CSU MEP Markus Ferber called the commission's decision "difficult to understand". The Federal Government and the Bundestag, who were the defendants in the ECB proceedings, “always tried to implement a difficult judgment wisely,” said Ferber. The German politicians, which now have to deal with the procedure, have "not been guilty of anything" and have already got rid of the facts objected to by Karlsruhe. Therefore, the procedure is "more than inadequate". There is “no reason for Brussels to be rioting in principle”.