The conflict between the German Federal Constitutional Court and the Court Of Justice Of The European Union: commentary on the German Federal Constitutional Court, Second Senate [Bundesverfassungsgericht, Zweiten Senats] Judgment 2 BvR 859/15, 2 BvR 1651/15, 2 BvR 2006/15, 2 BvR 980/16, of 5 May 2020

Abstract

On May 5, 2020, the Federal Constitutional Court of Germany issued a long and harsh judgment (2 BvR 859/15) that contradicts and disavows the judgment of the Court of Justice of the EU of December 11, 2018 (C-493/17, Weiss; ECLI:EU:C:2018:1000). The Federal Constitutional Court does not hesitate to describe as incomprehensible, meaningless and, of course, ultra vires, the decision of the Court of Justice of the EU and the way in which the reasoning of the high European court was produced. In substance, what is at stake is the ECB’s Public Sector Assets Purchase Programme (PSPP) and the ECB and ESCB’s power to take such decisions, which might exceed their competence as regulator of the EU monetary policy, to fully encroach into the field of the EU economic policy. This article analyses and compares the reasoning that fundaments the respective judicial decisions and evaluates the consequences that might result from them.