The Court of Justice, the Bundesverfassungsgericht and Legal Reasoning during the Euro Crisis: The Rule of Law as a Fair-Weather Phenomenon

Abstract

Since 2010 the EU has been in an 'emergency' situation due to the euro crisis, where the crisis management by the EU institutions, notably the European Central Bank, and national governments has been increasingly out of step with the EU Treaties and the natural meaning of the provisions defining the mandate of the central bank and the EU's economic policy powers. This article examines the judicial response to the euro crisis. The discussion will focus on the Pringle decision of the Court of Justice of the EU and the ESM judgment of the German Federal Constitutional Court (hereafter 'FCC'), in which both courts had to consider the compatibility of the European Stability Mechanism (hereafter 'ESM') with the EU Treaties and, in the case of the German Constitutional Court, also with the German Constitution known as the Grundgesetz. Further but less detailed consideration will be given to other decisions handed down by both courts in connection with the euro crisis since 2011. In relation to the Pringle decision, the author will summarize the key aspects of the decision and analyse the Court's legal argumentation to justify its conclusions. It is argued that the Court's general approach exhibits features which afford the Court great flexibility to take underhand account of extra-legal factors of judicial decision-making, notably political goals and institutional self-interest. In Pringle, however, the Court exploits the vagueness and norm uncertainty in its general approach to the maximum, to a point where legal reasoning no longer imposes any meaningful constraints on judicial decision-making. The author further shows that the Court of Justice's pragmatic and politically compliant response to the euro crisis is mirrored by the approach of the German Federal Constitutional Court (hereafter 'FCC') which, in its judgments on the legality of the Greek financial aid measures, the eurozone's temporary and permanent rescue funds, and the ECB's so-called Outright Monetary Transactions ('OMT') unlimited bonds buys programme effectively abandoned most central tenets of its long-established and well-considered case law on the principles governing the relationship between EU and national constitutional law and the principles of national sovereignty and the EU's supra-national authority confined by the EU Treaties.