To Boldly Go Where No Court Has Gone Before. The German Federal Constitutional Court’s ultra vires Decision of May 5, 2020

• Published in: German law journal Vol. 21; no. 5; pp. 1116 - 1127
• Main Author: Mayer, Franz C.
• Format: Journal Article
• Language: English
• Published: Toronto Cambridge University Press 01.07.2020
• Subjects: Bonds; Central banks; Complaints; Compliance; Constitutional courts; Constitutional law; Democracy; Federal government; International courts; International law; Legal arguments; Legislatures; Monetary policy
• ISSN: 2071-8322; 2071-8322
• DOI: 10.1017/glj.2020.58

On May 5, 2020, the Second Senate of the Federal Constitutional Court delivered its final judgment on the constitutional complaints raised against the European Central Bank’s bond purchase program ‘PSPP’.3 The constitutional complaints had been pending since 2015.The Court found the ECB’s PSPP to be unconstitutional. Actually, it found the PSPP to be not in compliance with the German constitution because it considered it to be not in compliance with European Union law, as it has no basis in EU competences. Wait, no, that still doesn’t reflect it properly. Let me try again.In the dispositive part of the judgment, the Tenor,4 it says that the German Federal Government and the German Bundestag (the German parliament) violated the German constitution (the principle of democracy) by omitting to take appropriate measures against the ECB not checking and explaining that the PSPP is in compliance with EU law (the principle of proportionality). On all other counts, the constitutional complaints were unsuccessful.In case you are already confused—it gets even better: the European Court of Justice had already confirmed the PSPP’s compatibility with European Union law in a 2018 ruling in the Weiss-case,5 answering a preliminary question from—the German Federal Constitutional Court.The Federal Constitutional Court’s main point of critique is the lack of an EU law proportionality assessment with regard to the ECB’s PSPP.6 Before assessing this ECB action themselves, the German court first had to get the contrary CJEU judgment out of the way.To understand how that could be possible and in order to understand what this is all about, one has to take a step back.