German judges versus European judges: what consequences for the EU? - France 24

Brussels (AFP)

What action should be taken on the disavowal by the German Constitutional Court of European justice? Faced with the danger of destabilizing the Union, the European Commission has raised the threat of proceedings against Germany, but this is not without risk.

In a resounding judgment last week, the Court of Karlsruhe, seized by eurosceptic applicants, summoned the European Central Bank (ECB) to justify its repurchases of public debt, and refused to comply with the decision of the Court of Justice of the EU which validated this program, criticizing it sharply.

The German judgment, in addition to its possible socio-economic consequences in the midst of the coronavirus crisis, represents a danger for the future of the EU, warn several European experts interviewed by AFP.

- Are there any precedents?

Yes, but not of this dimension. Other national courts have already challenged decisions of the CJEU: the Czech Constitutional Court in 2012 and the Danish Supreme Court in 2016.

But the stakes were less important politically. And this time it is "the highest court in the largest and wealthiest member state," said Tobias Lock, professor of law at the University of Maynooth in Ireland. He also recalls that this German Constitutional Court had "long warned the Court of Justice of the EU that there were limits to its jurisdiction".

"She has put her doctrine into action, this is what is new," notes Loïc Azoulai, professor of European law at Sciences Po in Paris, noting "that she finds herself in the camp of the anti-European Union".

- What can be the repercussions for the EU?

"These consequences are multiple, and all dangerous," warns Franklin Dehousse, professor at the University of Liège and former judge at the CJEU. The judgment could encourage other national courts to question the authority of the Court.

He was also greeted by Polish Prime Minister Mateusz Morawiecki, whose country has been condemned several times for its judicial reforms by European justice.

In addition to the possible knock-on and destabilizing effect, "the questioning of the ECB's monetary policy could weaken its credibility, at a time when it is absolutely vital in curbing the economic disaster that is starting to cause the coronavirus ", underlines Franklin Dehousse.

For Jean-Claude Piris, consultant in European law, "if we applied this judgment literally, it could kill the European Union, that would mean that we are going back to classic international law".

- How can the EU react?

The CJEU, headquartered in Luxembourg, stressed that it was "solely competent" to judge the action of the ECB. The Commission recalled the primacy of European law and the binding nature of decisions of the European Court of Justice over national courts.

Its president, the German Ursula von der Leyen, raised the possibility of launching an infringement procedure against Berlin, which can lead to a referral to the European Court of Justice.

However, such a decision poses a political dilemma. On the one hand, it is difficult not to act when "the German judgment was drafted to provoke an institutional clash", judge Franklin Dehousse. And if it does not act, the EU executive risks "giving the impression of having a double standard" with other countries like Hungary and Poland, he said.

- What are the risks?

On the other hand, initiating such proceedings against Germany over a court decision poses other problems: "the German government would say that there is nothing they can do to change the decision of the Constitutional Court, who is independent, "says Tobias Lock.

"The EU Court of Justice would say: the German Constitutional Court has violated European law, and the Constitutional Court would maintain that the CJEU has exceeded its powers. The only solution is that the two courts find a compromise to be able to both to save face "by" a dialogue "between the judges, he believes.

An action against a Member State for failure to fulfill obligations over a court decision would not be a first: France was condemned in 2018 by the CJEU on the grounds that the Council of State, the highest administrative court, had failed to seize the European Court for a preliminary ruling in a tax case.

© 2020 AFP