Proportionality and Karlsruhe's ultra vires verdict: Ways out of constitutional pluralism?

Martin Höpner

No 21/1, MPIfG Discussion Paper from Max Planck Institute for the Study of Societies

Abstract: In May 2020, for the first time in its history, the Federal Constitutional Court (FCC) of Germany declared Union acts as being ultra vires. According to the FCC, the European Central Bank (ECB) and the Court of Justice of the European Union (CJEU) had acted beyond their mandates because they did not apply strong proportionality standards to the ECB's Public Sector Purchase Programme (PSPP). The resulting stalemate within constitutional pluralism has revived the discussion about the possible introduction of an Appeal Court with the 'final say' over constitutional conflict. As the analysis of the PSPP conflict shows, such a judicial authority would reach its limits the more we move from the surface to the core of the struggles between European and national constitutional law. The different readings of proportionality are difficult to bridge, and the mutually exclusive claims about the nature of the supremacy of European law are not accessible to compromise at all. We should therefore not expect too much from an Appeal Court, if it were introduced.

Keywords: constitutional conflict; Court of Justice of the European Union; European Central Bank; European law; European Monetary Union; Federal Constitutional Court; proportionality; Bundesverfassungsgericht; Europäische Währungsunion; Europäische Zentralbank; Europäischer Gerichtshof; Europarecht; Verfassungskonflikt; Verhältnismäßigkeit (search for similar items in EconPapers)
Date: 2021
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