Germany in legal war with EU over courts’ status

Malcolm Latarche

Malcolm Latarche · 06 May 2020


Online news agency Bloomberg reporting on a row that has broken out between the European Court of Justice (ECJ) and Germany’s judicial establishment says in a long-awaited ruling on the European Central Bank (ECB)’s quantitative easing program, Germany’s constitutional court in Karlsruhe has accused the ECJ of overstepping its powers when it backed the ECB’s controversial policy.

The German court said the EU judges’ December 2018 ruling that QE was in line with EU rules was “objectively arbitrary” and is “methodologically no longer justifiable.” It gave the ECB a three-month ultimatum to fix flaws in the measure.

“This is a declaration of war on the ECJ, and it will have consequences,” said Joachim Wieland, a law professor at the University of Administrative Sciences, who sees the real challenge in the future relationship between the EU court and national constitutional tribunals. “It’s an invitation for other countries to simply ignore decisions that they don’t like.”

The ruling is a direct challenge to the supremacy of the EU judges, whose rulings are binding across the 27-nation bloc. The German court said this no longer applies in extreme examples when the EU tribunal fails in its duties.

The bigger issue is that the ruling has opened a Pandora’s box on the EU legal order, said Guntram Wolff, director of the Brussels-based Bruegel think tank. Calling an ECJ judgment “ultra vires,” or going beyond one’s legal powers, “is a huge issue for the integrity of EU law,” Wolff said in an email. “Every national court can now challenge the EU court by saying what the German court is doing, is also applicable to us.”

It is not only the toughest criticism the Luxembourg-based EU judges have faced by one of the bloc’s most senior courts, it also creates a risk that other nations will start to doubt their authority. The EU court has long been contentious among the ranks of Brexiteers, who won the U.K.’s 2016 referendum campaign. In recent months it’s also traded blows with Poland’s nationalist government over reforms to the country’s legal system. Poland’s Deputy Justice Minister Sebastian Kaleta said the ruling showed “yet again” that the EU doesn’t have the authority to meddle in or question Polish judicial changes.

While the European Commission said it would need to study the ruling in detail first, a spokesman pointed to how the EU’s top court rulings are meant to be the final word in legal conflicts. “We reaffirm the primacy of EU law and the fact that rulings by the EU Court of Justice are binding on all national courts,” Eric Mamer, spokesman of the European Commission said at a regular press briefing on Tuesday.

Although the case in question has no direct link to shipping, the ECJ has in the past ruled on disputes around shipping and shipbuilding matters. As countries within the EU look to improve their economies after the impact of COVID-19, there could well be many more cases where national interests of shipping related industries create conflicts that the ECJ might rule on.

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