The German Constitutional Court is stuck on an ideological position that prevents it from understanding the substantial difference between the German situation and European integration, argues Sergio Fabbrini and takes a closer look at some of the court’s rulings over the last decades.
The judgment on 5 May by the German Constitutional Court (Bundesverfassungsgericht or BVerfG) killed three birds with one stone. First, it ruled illegal the quantitative easing pursued by the European Central Bank (ECB), starting from 2015, with the Public Sector Purchase Programme (PSPP), casting a shadow over its current anti-pandemic programme. Second, it ruled the 2018 judgement of the European Court of Justice (ECJ) considering the PSPP as compatible with the ECB’s mandate as ‘ultra vires’, i.e. beyond its powers. Third, it criticised the German Government and the Bundestag (the lower house of parliament) for not defending the interests of Germany’s savers, banks and insurance companies, who, for years, had accused Mario Draghi of damaging them by cutting interest rates to zero (to the benefit of debtor countries such as Italy).
This pandemonium was not, however, created by chance. The judgment radicalises the political vision of European integration that the BVerfG has been asserting for years. While for the ECJ, European integration has ‘created a new legal order’ of a supranational type, for the BVerfG, an integrated Europe continues to be an interstate organisation. Let us have a closer look at the BVerfG’s political view.
The BVerfG’s critique of supranationalism
Since the early 1990s, the BVerfG has used its judgments to systematically and continuously fight the supranational vision of the European Union (EU). In a singular coincidence with the unification of Germany in October 1990, the BVerfG developed a radical critique of supranationalism, since it is bereft of democratic legitimacy. For the BVerfG, the EU cannot be vested with independent powers because it is not based on a (single and homogeneous) European ‘people’ which may legitimise the use of such powers. For the BVerfG, the EU is an organisation which derives from the will of the national states that set it up. The nation states are ‘the masters of the Treaties’ and their democratic bodies (parliaments, governments, and courts) must have control over the decisions taken at the European level. In the 1993 judgment on the Maastricht Treaty, the BVerfG clarifies that ‘the Bundestag must maintain duties and powers of significant weight (since) the European Parliament only has a support role in providing legitimatisation (to the EU)’. In the 2009 judgment on the Lisbon Treaty, the BVerfG criticises the Treaty for not giving the German Parliament ‘sufficient rights of participation in European legislative procedures and in those to amend the Treaty itself’.
While for the ECJ, European integration has ‘created a new legal order’ of a supranational type, for the BVerfG, an integrated Europe continues to be an interstate organisation. Let us have a closer look at the BVerfG’s political view.
According to the BVerfG, the adoption of the criterion of ‘degressive proportionality’ for the composition of the European Parliament has made the EP less democratic. That criterion means that small states are over-represented compared to the larger states, which penalises German voters (who however elect the highest number of MEPs). The 2012 judgment on the Fiscal Compact and the European Stability Mechanism and the 2014 judgment on the Outright Monetary Transaction (OMT) enhance the same principle – in other words they are legitimate only to the extent they guarantee the Bundestag the possibility of exercising full control over spending decisions.
No democracy outside the nation state?
The BVerfG’s political vision brings together both the statist and constitutionalist theories of the German tradition. The constitutional state (according to Paul Kirchhof, the architect of the court’s Maastricht Treaty judgment) is the essential condition to maintain democracy and to defend the identity of its people. Given Germany’s history, the fact that BVerfG vigorously defends constitutional principles is not surprising. However, in that defence, there is a political idea which shapes up as a genuine ideology. There is the idea that without a homogenous ‘people’ there cannot be democracy, with the consequence that democracy can only prosper in the constitutional national state.
If, as the BVerfG argues, democracy can only exist in the national state, then the EU’s supranational institutions can only act if they are controlled by national institutions.
This idea lacks empirical evidence, even if it reflects the specific German situation. In other European countries (such as France and the United Kingdom), the people historically derive from the state – they are not a prerequisite for it. But in unions of states that have become federal (such as the United States and Switzerland), democracy has been built in the absence of a homogenous people and a centralised state. If, as the BVerfG argues, democracy can only exist in the national state, then the EU’s supranational institutions can only act if they are controlled by national institutions. Thus, following the BVerfG’s rationale, the ECB is no more than a system of central banks, the ECJ one of the courts of European constitutional pluralism, the Commission a collection of national commissioners, and the European Parliament an expression of national electorates. In this political framework, the single market itself is destined to be called into question, given that it cannot exist without the independence of supranational institutions (such as the ECJ and the Commission).
An intergovernmental interpretation of European integration
In short, with the judgment of 5 May, the BVerfG has taken a great stride forward in asserting its political vision. This is an interstate, not sovereigntist, vision, even if it can be used by governments such as those in Poland and Hungary. The BVerfG has become a so powerful domestic opposition to supranationalism that it has driven post-Cold War German governments towards an intergovernmental interpretation of European integration.
The Commission should open an infringement procedure against the BVerfG for not respecting the Treaty.
The BVerfG is stuck on an ideological position that prevents it from understanding the substantial difference between the German situation and European integration. It is so taken by the rhetoric of its own arguments that it does not even consider their potentially problematic consequences. Also John Caldwell Calhoun (1782 – 1850), the American politician who, more than anyone else, elaborated the theory of States’ Rights, was pleased by the rhetoric of his arguments. His theory that America was a union of sovereign states which had the power to nullify the measures of the federal government, made no small contribution to creating the conditions for the Civil War that exploded ten years after his death.
The Commission should open an infringement procedure against the BVerfG for not respecting the Treaty. However, it would be even more necessary that German politics find a way for turning the Karlsruhe blinkers off.