On Wednesday 9 June, the European Commission launched infringement proceedings against Germany for violating the fundamental principle of the primacy of EU law, over a year after the German Constitutional Court challenged a judgment of the European Court of Justice validating the ‘quantitative easing’ (‘PSPP’) of the large-scale buy-back of public securities (see EUROPE 12480/17).
“EU law has primacy over national law. All judgments of the European Court of Justice (ECJ) are binding on Member States’ authorities, including national courts. (...) The last word in EU law is always spoken in Luxembourg”, said Christian Wigand, the Commission’s Justice spokesman.
According to him, “this principle has been breached by the judgment of Karlsruhe Court, which declares that the judgment of the European Court of Justice is ultra vires - in other words, it goes beyond its competence”. Indeed, the Karlsruhe Court’s judgment of May 2020 “deprives the EU Court of Justice’s judgment of its legal effect in Germany, thus violating the primacy of European law”, the spokesperson added.
The EU institution certainly has clearly taken note of recent orders of the Court of Karlsruhe which rejected two complaints against the ‘PSPP’ operation, believing that the ECB had demonstrated that this programme was appropriate since its judgment of May 2020 (see EUROPE 12721/34). However, the Commission believes that these orders do not revoke the violation of the principle of primacy of EU law.
Therefore, following “an informal dialogue”, with the German authorities (see EUROPE 12688/21), there is a need to act against “a serious precedent” that could have negative consequences for the future practice of the Karlsruhe Court itself and for the supreme courts and tribunals of the other Member States, according to Mr Wigand, who warned against a “Europe à la carte”.
Several Polish and Hungarian leaders welcomed the Karlsruhe judgment as an example of how to limit the EU’s influence in national affairs.
Asked what Germany could do in concrete terms, the spokesperson raised the possibility that case law may be changed in this Member State, or that a judgment of the EU Court of Justice may provide a clarification.
The German Constitutional Court’s judgment of May 2020 has led to extensive press coverage of the alleged Euroscepticism of the judges in Karlsruhe. Several MEPs had also called for the Commission to act and enforce the rule of EU law (see EUROPE 12532/21, 12527/15).
According to the Commission, infringement proceedings to enforce the primacy of EU law have been initiated in the past against France, Spain, Italy and, at the end of 2020, the UK. (Original version in French by Mathieu Bion)