Gauging “Ultra-Vires”: The Good Parts

Karsten Schneider

doi:10.1017/glj.2020.61

Abstract

AbstractThe Federal Constitutional Court’s ultra-vires case law—especially its most recent iterations—has more than its fair share of bad parts. It went from non-existence to global prominence in an alarmingly short period of time. Fortunately, the doctrine contains some extraordinarily good parts. Within the case law, there are three beautiful, elegant, and highly expressive elements that are buried under a massive tower of good intentions and hard luck: First, the principle of distinction between the two concepts of responsibility and accountability, second, the ban on transferring blanket empowerments, and third, the idea of a “program of integration” as a good medium for expressing vague ideas. In combination, these elements constitute a constitutional mechanism that does not play hell with European law, but truly complements any union based on multi-level cooperation. Focusing on the good parts—and avoiding some bad parts—might help prospective ultra-vires reviews to steer clear of wreaking havoc. The subset of good parts can serve to shift the constitutional case law towards reliability, readability, robustness, foreseeability, and, if nothing else, explicability.

Highlights

The Federal Constitutional Court’s ultra-vires case law—especially its most recent iterations—has more than its fair share of bad parts
There are three beautiful, elegant, and highly expressive elements that are buried under a massive tower of good intentions and hard luck: First, the principle of distinction between the two concepts of responsibility and accountability, second, the ban on transferring blanket empowerments, and third, the idea of a “program of integration” as a good medium for expressing vague ideas
For the first time, the Federal Constitutional Court (FCC) qualified a total of five ECB Governing Council decisions as ultra-vires acts,3 despite the CJEU’s judgment to the

Summary

Introduction

The Federal Constitutional Court’s ultra-vires case law—especially its most recent iterations—has more than its fair share of bad parts. The best thing about constitutional ultra-vires case law is its principle of distinction between the two concepts of responsibility and accountability.

Results

Conclusion