Friday, February 7, 2014

"Revenge" Of The German Constitutional Court?

In an article which I posted 18 months ago, I argued that the German Constitutional Court (GCC), if it felt played by German politicians, could 'revenge' itself by passing the OMT issue on to the European Court of Justice (ECJ) for a ruling. Well, the GCC has now done exactly that. Was it a revenge?

Personally, I think only very competent legal minds should opine on this issue because it is so complex. Not being such a legal mind, I refrain from voicing legal opinions. Two things surprise me, though.

One reaction is that the ECJ is likely to condone the OMT. That surprises me. After all, I presume that the members of the ECJ are legal experts like those of the GCC and if German legal experts found it so difficult to rule on the subject, why should it be easier for EU legal experts? On the other hand, the ECJ seems to have no intent to procrastinate: they have announced a ruling on March 18. So they must think that the issue can be handled with reasonable speed.

The other surprising reaction is that the GCC's decision is viewed to represent a major surrender of German sovereignty. I used to think that one of the EU principles was that EU law supersedes national law. Why would this be different in the case of the OMT? In the extreme sense, if a positive ruling on the part of the ECJ were in conflict with the German constitution, Germany would have to amend its constitution; wouldn't it? That would be interesting to watch.

Bottom line: if I felt 18 months ago that the GCC's passing the issue on to the ECJ would be a revenge, I today think that it is more an issue of helplessness.


  1. Although I am not a lawyer, I have some background in EC and international law and a few academic publications in that area.

    First, I can tell you that on matters of extreme political importance, higher courts do not make legal judgements. Not even German ones. They make their decisions in the context of politics and both domestic and international. This applies to the German constitutional court as well as the ECJ.

    Secondly, the decision to refer the matter to the ECJ is a surprise, because in the past the German constitutional court has tended to deny the supremacy of EC law over the German constitution.

    Thirdly, it is almost unthinkable (for the reasons in point 1) that the ECJ would rule the OMT unlawful. The only exception would be (and this is a frequent feature of their judgements) if they manage to construct a legal loophole that would allow the OMT to continue even if they rule it unlawful.

    I agree completely with your last sentence though.

  2. @Guest(xenos): I am glad to know that there exist notable exceptions to your explanation of how higher court operate!!


    1. Haha:-) What I have described is exceptional and usually confined to very important political or economic cases. Normally, European courts at the highest level try to implement justice; constitutional courts are always in danger of getting tangled up with politics, of course...

  3. You might find this interpretation of the latest ruling of the German Constitutional Court interesting:
    (Professor Lucke is the leader of the "Alternative für Deutschland" (AfD), a German party that is critical of the way ther Euro crisis is being handled)
    Kind regards

    1. Of course it strengthens the euroskeptics. I found this column by Wolfgang Münchau rather fitting: