An article written by Thomas Giegerich
On 2 December 2021, the European Commission decided to close a politically highly charged infringement procedure under Art. 258 TFEU against Germany. The procedure had been initiated by the Commission in June 2021 in regard of the judgment of the Federal Constitutional Court (FCC) of 5 May 2020 on the Public Sector Purchase Programme of the European Central Bank. In that judgment, the FCC brushed aside a judgment of the Court of Justice of the European Union confirming the compatibility of the PSPP with primary Union law which the FCC had requested in accordance with Art. 267 (3) TFEU. The FCC characterised the CJEU judgment as utterly incomprehensible and arbitrary, thus constituting an ultra vires act that was not binding. The German Court did not even consider requesting a further preliminary ruling in order to enable the CJEU to close the alleged gap in its reasoning which so upset the FCC.
In its press statement, the Commission gave three reasons for closing the infringement procedure: “First, in its reply to the letter of formal notice, Germany has provided very strong commitments. In particular, Germany has formally declared that it affirms and recognises the principles of autonomy, primacy, effectiveness and uniform application of Union law as well as the values laid down in Article 2 TEU, including in particular the rule of law. Second, Germany explicitly recognises the authority of the Court of Justice of the European Union, whose decisions are final and binding. It also considers that the legality of acts of Union institutions cannot be made subject to the examination of constitutional complaints before German courts but can only be reviewed by the Court of Justice. Third, the German government, explicitly referring to its duty of loyal cooperation enshrined in the Treaties, commits to use all the means at its disposal to avoid, in the future, a repetition of an ‘ultra vires‘ finding, and take an active role in that regard.”
The reported reaction of the German government is nothing less than a complete disavowal of the PSPP judgment, and rightly so. However, the formulation of the third reason clearly indicates the obvious – that the means of the German government to rein in the FCC’s case law in EU matters that has long gone astray are limited. On the other hand, the final decision of the FCC in the PSPP procedure – the Order of 29 April 2021 rejecting applications to enforce the PSPP judgment – already indicated something no less obvious – that the Court’s authority in a constitutional system based on the separation of powers is not unlimited and reaches no further than it can persuade the other branches of government. By arrogating the role of ultimate arbiter of the European integration process at the instigation of German Eurosceptics, the FCC has carried matters simply a bridge too far.
The end of this completely unnecessary escapade by the Karlsruhe Court is not really good, but it is the best possible damage limitation. From now on, the Federal Constitutional Court, the European Court of Justice and the European Court of Human Rights should join forces to protect the European rule of law from internal and external autocratic attacks.
 See Thomas Giegerich, Das PSPP-Urteil des BVerfG und seine diversen Nachspiele, Saar Expert Paper of 14 June 2021 (https://jean-monnet-saar.eu/wp-content/uploads/2021/06/Nachspiele_PSPP_Urteil.pdf).
https://ec.europa.eu/commission/presscorner/detail/en/inf_21_6201?fbclid=IwAR1w6wbHhdcA5vxlqXTohUjxcgF7mJbpSBxTXjxaNWXpMJ0MIzb9Zyuwv7I (3 Dec. 2021).
Suggested Citation: Giegerich, Thomas, All’s well that ends well? – European Commission closes infringement procedure against Germany on PSPP judgment of the Federal Constitutional Court, jean-monnet-saar 03.12.2021, DOI:10.17176/20220308-150021-0.