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EU risks losing Germany if it picks a constitutional fight to the death, or the euro if it doesn't

A major clash is underway between the German constitutional court and the ECB and ECJ which could threaten the future of the EU

Step by step, the EU institutional machine is making the same mistake with the German people that it made with the British people. It is taking a law-abiding and well-meaning nation for granted.

It is treating the legitimate sensitivities of a large net contributor with disdain and playing fast and loose with constitutional law. The European Court (ECJ) has acquired the habit of claiming powers that are not rooted in any Treaty text, advancing Monnet federalism by an odd mixture of bravado and stealth.

The EU assumed it could get away with this because the German policy class has been broadly complicit - up to a point - but Europe has now run into the unyielding resistance of the German constitutional court, the defender of the post-War Rechtsstaat538prom精品视频在线播放, and the body that likes to think of itself as the "people’s court".

Outgoing chief justice Andreas Vosskuhle told Die Zeit that the crimson judges of Verfassungsgericht in Karlsruhe speak for the “normal people” of Germany, the hard-working souls who rarely complain and are forgotten by the grievance industry. He pointedly stated that the court is the counterweight to “liberal elites”.  

538prom精品视频在线播放His on May 5 was a double shot across the bows of the European Central Bank and the European Court. “The constitutional court has found that the actions and decisions of European bodies overstep their legitimate competence, and therefore have no validity in Germany,” he said.

The German constitutional court

The tone was astonishingly brutal. The court ruled that the ECB had “manifestly” breached the principle of proportionality with bond purchases topping €2.2 trillion, and had strayed from the monetary realm into broad economic policy without legal authority.

It said the ECJ’s rubber-stamp ruling in favour of limitless QE was capricious, “incomprehensible”,  and ultra vires. “It is a declaration of war. The ruling is for the European Court,” said Professor Franz Mayer from Bielefeld University.

The language was volcanic but that was precisely the point. Whether or not the Verfassungsgericht538prom精品视频在线播放 is right about the technicalities of monetary policy is irrelevant in the larger story of Europe. The ruling is a primordial scream from deep within the German nation.

“The court knew what they were going to do in unleashing this judgment,” said Martin Schultz, ex-president of the European Parliament and a zealous EU integrationist. "They have damaged the European legal order and must now live with the reproach."

On the other side, Polish premier Mateusz Morawiecki called it the “most beautiful judgment in EU history”. It puts bossy EU commissars back in their box and vindicates the souverainiste538prom精品视频在线播放 ideology of his Law and Justice Party.

538prom精品视频在线播放Brussels now seems determined to escalate. Commission chief Ursula von der Leyen - a German but all the more eager to prove herself European - reasserted the full, unbridled EU claim to legal supremacy, and vowed infringement proceedings against Germany.

Marcel Fratzscher, head of the German Institute for Economic Research (DIW) and ex-chief of the ECB’s international unit, says the EU is playing with fire. “European institutions must take the Constitutional Court’s challenge seriously, or catastrophic consequences could follow,” he said. "The German mainstream view is that ECB policies since 2008 have been designed to benefit weaker southern European countries at Germany's expense. That is not a problem that can be brushed aside.”

Christine Lagarde president of the European Central Bank

Brussels and the fraternity of EU-funded think tanks are outraged by the Karlsruhe challenge . But those now demanding that Germany bring its judges to heel are more or less the same people urging maximum sanctions against Poland and Hungary for doing exactly that - bringing their judges to heel.

The German government can do no such thing. The Versfassungsgericht is the pillar of the post-War order, the moral guardian of the new republic, endowed with extraordinary powers to police the country’s democratic institutions.

Edmund Stoiber, ex-premier of Bavaria, said the EU is no more than a confederation of states and the German court is entirely justified in checking abuses by EU bodies. He warned Mrs von der Leyen that the ruling must be respected and that she is entering perilous waters with her impetuous probe.

So too did Freidrich Merz, a pro-European and one of two front-runners to succeed Angela Merkel. He dismissed the bald assertion of EU legal primacy as nonsense and added his voice to those demanding that the Bundesbank must comply with orders to withdraw from the ECB’s bond purchase scheme538prom精品视频在线播放 (PSPP) unless the EU responds adequately within three months.  Markets have yet to grasp that this injunction also means that the Bundesbank may have to sell existing holdings.

Arnaud Mares from Citigroup says investors have been strangely insouciant, as if the judgment were somehow “not binding” and could be wished away.  “We disagree entirely with this benign interpretation," he said. "The ruling represents a genuine threat to the stability of Europe and now requires an extraordinary feat of statesmanship – on a par with the Schuman Declaration in May 1950."

538prom精品视频在线播放But of course, we now know that the Schuman text was actually drafted in Washington under intense US pressure at the start of the Cold War. There is no US administration today urging EU states to join forces.

The Schuman Declaration in 1950 was the great leap forward in post-war European integration. But it was largely drafted in Washington Credit: eu.consilium

Mr Mares, once Mario Draghi’s right-hand man at the ECB, said the judgment eviscerates the single market, strikes at a particularly dangerous moment, and “could potentially bring the European Union to breaking point much faster than most people think possible”. While the ruling does not cover the latest €750bn of "pandemic bonds" launched in March, it does so implicitly because the new scheme breaches even more red lines. 

Pandemic QE538prom精品视频在线播放 lacks any of the constraints demanded for the prior bond purchases - the 33pc rule, the "capital key", and credit quality. It is open-ended and therefore in flagrant defiance of the court’s insistence on strict limits. So what happens when the €750bn runs dry later this year and needs a further huge boost?

Roughly 40pc of the latest purchases are going on Italian bonds. The ECB’s chief economist openly states that they are intended to lower risk spreads in “individual sovereign markets” at risk due to the “prospective scale of public debt issuance”.

538prom精品视频在线播放It is an admission that QE has morphed into a fiscal rescue by the back door and that it trespasses on the tax-and-spend prerogatives of the German parliament, rooted in the Basic Law. The court says MPs in the Bundestag may not legally alienate these fiscal powers to any supra-national body even if they want to.

Mr Mares says there is nothing that the ECB can offer to reassure the Verfassungsgericht that it has done its homework and weighed the economic effects of its actions. The basis of its actions  are public record already. “We see no genuine reconciliation between how the ECB implements monetary policy and what the German court deems acceptable, within three months or any time,” he said.

Professor Adam Tooze from Columbia University says the German ruling is. The judges have failed to come to terms with the changed nature of central banking in a zero-interest world. They lapse into quixotic pseudo-economics and rely mischievously on anti-QE witnesses with an axe to grind.

But the court is nevertheless “right to detect a sleight of hand when the ECB justifies an entirely new set of policies” by citing its mandate of price stability. The judgment has “put a spotlight on the ECB charade”.

German plaintiffs think the ECB is carrying out “redistributive Keynesianism in monetary disguise” and is an opaque technocratic agency, “arrogating to itself powers that properly belong to national parliaments, barreling down the slippery slope to a European superstate”. This is self-evidently true.

The Commission’s attempt to compel German compliance is a gamble with nuclear stakes. It forces Berlin to take sides. The government must defend the Verfassungsgericht and the Grundgesetz538prom精品视频在线播放, the Magna Carta of German democracy.  

538prom精品视频在线播放It forces clarification of the fundamental ambiguity in the EU’s constitutional structure. Is the union a superstate like the US with a genuine supreme court, or is it essentially a treaty organisation of independent states?

538prom精品视频在线播放The German judges ruled categorically that it is the latter. They said the EU is not a “federal state” and that the sovereign nations remain “Masters of the Treaties”. They stated in black and white that the German court is “not bound” by the ruling of the ECJ.

Brussels may discover that if it compels a reluctant Germany to choose between these two incompatible versions of Europe, it may not like the answer.  

538prom精品视频在线播放Wolfgang Schauble, the wily president of the Bundestag and EU integrationist, advised Brussels to accept the German ruling. It should seek an “intelligent” way out and retreat to safer ground rather than forcing a show down that could go horribly wrong.

538prom精品视频在线播放“Independent institutions that are not democratically controlled must stick carefully to their mandates and not stray," he said. "The German ruling cannot easily be refuted."

The European Court was asking for trouble with its perfunctory treatment of the German court in a 2018 ruling, as if questions about the exponential expansion of QE did not need answering. The Verfassungsgericht has never accepted the ECJ’s claim to supremacy, always reserving the right to strike down any EU law that breaches the Grundgesetz.

The ECJ merely asserts primacy. The doctrine was invented out of whole cloth in the landmark Costa/ Enel case in 1964. This bootstrap jurisprudence - in essence a bluff - has been indulged and tolerated by member states. Until now.

There is no Treaty basis for EU legal supremacy. Judicial expansionists in the EU legal services unit tried to slip it into the Lisbon Treaty but all they got was a thin Declaration in the annex stating that the “settled law of the Court” has primacy over national law.  

This Declaration is a give-away. The British know how little this means. Tony Blair secured what he thought (or pretended to think) was an opt-out from the EU rights Charter in the Lisbon Treaty. This Protocol 30 was of higher legal value than a Declaration but was nevertheless swatted aside later as a worthless piece of paper by ECJ judges. Sauce for the goose is sauce for the gander. 

538prom精品视频在线播放The German judges have repeatedly objected to judicial activism by the ECJ, thunderously denouncing its misuse of the Charter to extend its power. Their finger has been on the trigger. Finally they pulled it. The implicit has suddenly become explicit.

That changes Europe at a stroke. There have been other cases where the Danish and Czech courts failed to implement EU law - leading to probes and retreat - but these were minor episodes of a different character.

The Verfassungsgericht has taken matters into its own hands and overruled the European Court on EU Treaty law itself, accusing it of legerdemain of an existential issue. It is not just a question of defending the Grundgesetz any longer.

The ultra-Europeans are right to protest that this subverts the EU legal order as they wish it to be and renders the federalist project unworkable. But they got ahead of themselves in believing their own version of legality in the first place.

The German People’s Court has broken the spell. The political reality is that the formidable and long-silent Deutsche Volk has said in crimson language that enough is enough. Ultra vires will not fly. Any attempt to bully them into submission must surely fail.

538prom精品视频在线播放“Sooner or later something like this was bound to happen, and it’s not going to go away,” said Marco Annunziata, an EU economic veteran. “The euro area we have is not the one the German public signed up for. If it slides into a transfer union, the costs for Germany would be large and open-ended.

538prom精品视频在线播放"The idea of Germany leaving the euro area no longer sounds as far-fetched as it might have 15 years ago... only somewhat more far-fetched than thinking the UK might leave the EU,” he told an The unthinkable is becoming thinkable.

One is tempted to say that for the EU to lose its second biggest net contributor is careless: to risk losing its dominant economic power as well is compulsive.

538prom精品视频在线播放But Brussels is in a genuine quandary. It cannot let the euro implode either after going so far. The enduring theme of classical tragedies is that sometimes there is no way out.

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