Europe is beautiful if it always remains true

This very significant expression of Ludwig Erhard, the former caccear and the prominent personality of last century's German politics, ideas and market social policy doers who gave endless support and energy to the economy of the German Federal Republic of those years, is mentioned whenever there are problems or important debates on essential and highly sensitive issues dealing with the present and perspective of the European Union. Such was two years ago the debate that sparked French President Emmanuel Macron's programming speech about meeting current EU challenges, proposing with this case numerous changes aimed at closer co-operation and taking on new responsibilities in all areas and levels of this international organisation.

In fact, the above expression also remembered these days of self, carefully following heated discussions that have broken out at the state level, public and doctrine, regarding the report between the right of the European Union and the internal right of member states and, more specifically, between the decision-making of the European Court of Justice (GJEDR) and the constitutional courts or the high courts of these states. The conflict on this report is very long in time and the problem has many technical elements in the legal and international judicial outlook. In a scripture like this, however, I will try to briefly present its enormous essence and importance for the very existence of the European Union, while also counting on the great benefit of such a health dispute, the clarification of standards, the deepening of internal integration into this organization, and the best service to European citizens.

Cause for the most recent debate was made the Constitutional Court of Germany (GJKGJ) of the previous few days on the issue of a separate European Central Bank programme (BQE), called the Public Sector Purchase Program (PPP). This programme was launched several years ago by former ECB President Mario Draghi. Its aim is to prevent fragmentation of euro financial markets and control of its inflation under two percent, which is more than necessary to ensure a strong and secure currency. Two years ago, the European Court of Justice, in the so-called “Gauweiler” (former German deputies that submitted the application to this court), praised this EC programme as highly efficient and useful, undertaken in accordance with its obligations based on EU Trades, in the framework of implementing monetary policies, which is normally its main function. But, meanwhile, the German Constitutional Court was later invested in this problem, one of the most prestigious, more esteemed and authoritarian courts in Europe, which in its decision, for the first time and totally unexpectedly, directly addressed the decision of two of the EU's leading institutions for this problem BEC and GERMANY.

In its decision of May 5, 2020, the JECG says among other things that the ECB cannot approve such an important programme, based solely on monetary policy objectives. According to her, in these cases she has to make an extensive argument, which also takes into account the economic, fiscal and political interests of member states, and that the results of this analysis should make clear and public for all. Meanwhile, the GenDR strike is even more frontal and severe. The JECG ruling states expressly that this Court, in the <x0 decision The Gauweiler” of the two years ago on the SPPP issue has failed to make a full interpretation of the matter in question. Above all, it points out that the GDR has not implemented the important and necessary proportional test when interpreting EU law, “... as an important methodological standard... based on joint judicial and constitutional traditions of member states...”. On this basis, the JGG describes the WDR decision as “arbitraryly arbitrary” and “from the methodically non-representative side”, making it unobsistable in practice, since it is ultraviertary, which means it is taken by not respecting the competencies it has based on treaties. It adds that “ ...the ultraviral act cannot be implemented in Germany”, so it cannot have any effect on German institutions.

The JGG's decision was immediately met with an unprecedented storm of criticism from all directions, but especially by doctrine. It was described as an atomic bomb for European legal order; as a lightning in the open sky; as a flagrant violation of judicial ethics; as disrespect of the European institutions; as provocation and as a severe blow to the architecture of EU justice; as a dangerous precedent; or as a Troye horse for judicial security and judicial authority of this organisation and others. Above all, the fact that this decision was applauded by Eurosceptics, by nationalist parties in Europe, as well as by the governments of member states, which currently have open problems with EU institutions regarding important issues dealing with the principle of democracy and the rule of law. Because it was thought (or even thought) that similar decisions that openly reject the decision making of EU institutions, very well and very simply can be made by the Constitutional courts and the Supreme courts of other member states.

Therefore, the Polish prime minister's statement is also identified, citing the WGG decision as the most important “decision throughout the history of the European Union”. Because at first glance, the JGG's decision seems to affect or violate one of the most important, inherent or sacred principles of the European Union's right, its primacy or priority in the event of conflict with the internal right of member states, clearly marked by the ECHR itself in 1964 on the Costa/G. EnEL. Without applying this principle, of course it cannot be talked about equality, unity and uniformity of EU law. Law security and DEC authority cannot be discussed as the EU's highest judicial insistence. Therefore, the concern of European institutions is also legitimate. The European Commission, as a guarantee of implementation of treaties, is considering the steps it can and should take. Concerns have also been expressed in the European Parliament and in national parliaments.

Bundestag, meanwhile, has been seriously committed to solving this not easy-to-easy drive, which was even more complicated by interviews or clarifications that tried to give about their decision, the head of the JCG, Andreas Voskuhle, as well as the relator judge, Peter Hüber. Particularly the unusual interview in such cases of the latter in defense of the decision given was appreciated for further exacerbating the tense situation created between Berlin and Brussels (or more directly, between Karlsruhes where the GRG and Luxembourg, where the GERMANY is). However, what is most impressive in this situation is the calm and brief reaction through an interview given to a Dutch newspaper by the president of the GDR, Koen Lenaerts. He clearly said: “We do not comment on the decisions of national courts... but it should be stressed that EU member states themselves have determined the DECR to be responsible for ensuring unity and equal implementation of the EU's right... Only thus can equal implementation of EU law... because otherwise the principle of judicial security and unity of European law...” be violated.

In fact, in practice the problem is not that simple. The German Constitutional Court certainly knows very well that the ECB is not under its jurisdiction and that EU rights have priority in the case of conflict, with domestic rights. That is clearly true in the decision of May 5, 2020. She also knows that, and the ECHR is the last instigation to ensure that right. So it is clear that it cannot cancel the ECB's word program, as well as the ECHR's respective decision. Its intervention in EU law has been historically justified only in very rare cases, when it comes to effective protection of fundamental rights (entirely Solange I, 1974), as well as issues involving the constitutional identity and common traditions of member states, guaranteed even in the EU Treatys (entire to 6063 of the EU Treaty, referring to the protection of human rights, as well as Article 340/2 of the Treaty on EU Function, which is non-communal responsibility). Therefore, in the concrete case it is clear that the JGG decision cannot directly address the right of the EU or its institutions. It has clearly been targeted as the main German constitutional institutions, and specifically the Government, Parliament (Bundestagu), the Federal Bank (Bundsbank) and German courts, which, in principle, on the basis of this decision, without previously taking the measures required in the NGR decision, were forbidden to engage in BEC programmes related to the PPP, because respective acts have been praised as ultra-visancies.

Bundesbank is also prohibited from buying treasury bonds on the basis of this programme. On the other hand, in the formal-juridical perspective, even the ECB cannot directly implement the JG's decision, because, among other things, its decisions cannot be influenced by the courts of member states, both these and constitutional courts, and that on the other hand, this action would create a very dangerous precedent and with very serious consequences for EU judicial order. The issue gets even more complicated if it is thought that for the same reasons the BEC's major programme on coping with the economic consequences of the Devivar-19 (Program) PEPP Pandemic Eergency Purchase Program, this similar programme in its formal perspective with the PPP, which is expected to take to a distant future.

In addition, there is a legal way to resolve this conflict. According to the EU Treaty, the European Commission could at any time initiate a procedure against a member state for violating treaties, in cases where its public institutions, including courts, take action or adopt acts that are openly opposed to their obligations and EU rights. In these cases, the Commission initially holds direct talks with the state in question, and if they do not yield results, the issue is passed to the ECHR, which could impose on the payment of specific sums or a considerable fine from the member state.

European Commission President Ursula von der Leyn warned last week that the Commission is studying such an opportunity, either to initiate or not a procedure against Germany for disregarding the ECHR decision of 2018 and potentially violating the ECB independence. However, I think that would certainly be undesirable by all, since apart from extending this conflict considerably over time, it would escalate even more its size, the more it comes to the decision of a court of known national and international vocalization, such as the Constitutional Court of the German RF, which in its legal and constitutional perspective has made an extraordinary contribution to the entire process of deepening European integration. Its decisions on protecting human rights on the European level need to be mentioned in this regard; historical decisions on the Maastricht Treaty in 1993; and the Lisbon Treaty in 2009; and others.

However, all are awaiting developments in this regard in the near future. However, with the fall of the first fury of intense criticism of the JCG's decision, it appears that some details are being sought that are intended to please all parties. The idea is that the ECB, indirectly, not directly referring to the JGG's decision, will review the reasoning of its decision on P The SPP, paying greater attention to any concrete case, proportional test or arguments related to a fuller analysis not only of monetary policies but also costs of economic, fiscal and political nature. This is not simply to satisfy someone's whims formally. Better is estimated that this way of reasoning clearly strengthens the legitimacy of the measures taken, increases security and trust in the ECB of EU institutions as a whole, as well as guarantees a continued and sustainable dialogue of the ECHR with the courts of member states.

In that sense, it can be said that the JCG decision is good and beneficial. It essentially requires more Europe and security in making decisions at the European level. However, the form of its appearance and the tones specifically used towards the ECHR cross the limits of normality. However, it is certain that both sides have acted on fines and that this dialogue, of course, gives impetus and brings forward the integration and co-operation process between member states and the EU. The more in Germany, which is already known, is the engine of this remarkable process. It is the engine of this giant locomotive that has not only guaranteed peace and close co-operation in Europe in 70 years but also the security, sustainable development, and prosperity of all member states and their citizens. Because as Erhard said, Europe is very beautiful if it always remains true.