The German Federal Constitutional Court’s Judgment on the PSPP: What happened to the EU law Supremacy? Implications of the Judgment for the Trade and Customs Policy of the European Union

Abstract

The German Federal Court’s judgment on the Public Asset Purchasing Programme (PSPP) and the European Central Bank on the one hand calls into question the supremacy of European Union law. On the other hand, perhaps with some sound arguments, the mentioned Constitutional Court criticized the Court of Justice of the European Union (CJEU) for granting very limited judicial protection against acts like the challenged ones. It is the view of the German Federal Constitutional Court that the Court of Justice of the European Union by granting ‘wide discretion’ to the EU institutions, coupled with applying a ‘limited judicial review standard’, would not be able to guarantee appropriate judicial protection against EU law acts, which can be unlawful. We argue here that the reasoning as adopted in the judgment of the German Constitutional is not a new matter in the European Union, as the conflicts between the CJEU and the highest national courts did occur in the past. In fact, the judgment of the German Constitutional Court is a clear indication that according to some of the highest national courts, the unconditional supremacy of the EU law cannot be accepted. Instead, the scope of the interpreted EU measures should also align with the highest level of the national legal norms, such as constitutional norms or fundamental rights.We are also arguing that it would be up to the European Commission to re-establish the order via the infringement proceedings tool, yet that the Commission should be strongly endorsed among the EU Member States for taking such measures. It is, however, possible that the following matter can be resolved without restoring to such measures. From a substantive point of view, however, we have the regret of concluding that the German Federal Constitutional Court raised valid substantive arguments against the Court of Justice of the European Union. Finally we examine the potential scope of implications, which could occur in the trade and customs fields in the European Union. EU supremacy, PSPP, ECB, Constitutional courts, judicial review