On the Remarks of the German Government to the Commission after PSPP

If this was a eulogy, I would begin by saying that “it is with great sadness that we now need to face an ugly truth”, and the situation is kind of the same. Just coming to my senses after the many tumultuous events in 2021 European constitutional law, I noticed an eye-opening article on Verfassungsblog written by our colleagues, Karl-E. Hain and Frederik Ferreau, who talk about the German government walking on what they characterize as “tricky terrain”.

In the aftermath of the now infamous May 2020 PSPP decision, the general sentiment of European constitutional discourse towards the Federal Constitutional Court (GFCC) has significantly turned for the worse, casting shadows of suspicion on the judicial body for laying down the legal foundations nothing else than the beginning of Dexit. No matter how unrealistic these undertones continue to be, in this climate, the natural counteract was announced by the EU Commission in the form of an infringement proceedings, which was then closed against Germany on 2 December 2021, as Christmas came early for the newly formed German executive after the shuffle resulting from the most recent elections.

As one of their first acts as Germany’s newly inaugurated executive, the Government has sent a response to the formal notice sent by the Commission, which has rightly been described as “verfassungsrechtlich mindestens bedenklich”, which is German for ‘at least questionable in a constitutional legal sense’. The exact portion of the response they refer to roughly translates into this: The Federal Government has undertaken, “with express reference to its duty to cooperate loyally anchored in the treaties,” among other things, to “use all means at its disposal in order to actively avoid a repetition of an ultra-vires finding in the future”.

Prima facie, there are many problems with this executive statement. First off, and this is rightly acknowledged by the VerfB authors as well, a grave danger to judicial independence lies within this statement. Judicial independence is, however, often characterized as a pivotal element of the rule of law and therefore is placed on the forefront of current European debates with such countries that are thought to fall behind on the enforcement of European values on this front.

The second thing is the surprising tone of the quote talking about “actively avoiding the repetition of an ultra-vires finding” as if such a declaration by a constitutional court was a dangerous viral infection or a blossoming pandemic (by a less tasteful turn of phrase: an “ultra virus”, if you will…) The quick spread of this German “ultra virus” was envisioned by many in legal academia after 5 May 2020, but experience tells us that not many constitutional courts have “fallen in line” with this approach.

Those wo did, have been extensively criticized with relevant in-depth explanations of judicial statements that pointed to an abuse of competences. The Hungarian Constitutional Court – most often scolded by many for blindly following the GFCC in general but also in terms of sovereignty and identity control – decided in a very controversial decision reached on 10 December 2021, that the judgment of the CJEU on certain migration related issues (C-808/18) needs to be enforced without question. So not all political expectations in terms of constitutional courts are “safe bets”, when it comes reviewing the relationship of EU law and the national constitution.

Thirdly, a different narrative of the principle of loyalty emerges from the above quote, one that was so far unseen in recent European constitutional discourse. To me, it represents an unwavering conviction wrapped into the duty of loyalty under the Treaties, which triggered an executive instinct to limit the competences of an independent, autonomous and quite vocal constitutional organ created to defend the constitution and the national legal order. Were it not in Germany, where our story unfolds, the aftermath would potentially have been much louder in Europe. However, as the cited VerfB authors point out, German media was not quick to pick up on this as far as reporting and public broadcasting goes. Historical experience dictates that similar efforts to curtail the powers of a constitutional court have already been met with unforeseen uproar at the time of the adoption of the new constitution for Hungary in 2011-2012, but no European alarm bells toll as of yet for Germany – despite the welcome ones that have been duly rang by Hain and Ferreau on Verfassungsblog.

A familiar sentence pops up in their article when they talk about the core value of judicial independence: “This basic principle of our constitutional order must not be touched.” Many things have been said and written down on this issue already in the context of current Polish and Hungarian debates on the rule of law. Regardless whether we can completely agree with the arguments of either of the sides, what might already be common knowledge among these may be the opinion taken by the Polish Constitutional Tribunal (PCT) in response to interim measures imposed by the CJEU regarding the operation and composition of their Disciplinary Chambers in infringement proceedings against Poland. In that case, decided by the PCT in July 2021, it was put forth that the principle of loyalty as set in stone by the Treaties is incompatible with many specific provisions of the Polish Constitution and the institutions and branches of power created and protected by it.

In this German case, surprisingly however, this minute detail of “constitutional tissue” seemingly did not bother the executive at all, and they calmly take aim at the constitutional judiciary to put the Commission at ease by making political promises.

If nothing else, it has the impression of a chilling effect on constitutional adjudication in the context of integration and intends to put the GFCC “in its place”, especially in light of the fact that this proclamation contributed to the closure of the infringement proceedings against the country. (It is not my place to say whether the change in the leadership of the GFCC contributed to the birth of such bolder executive statement regarding the Court, as I do not have sufficiently intimate knowledge of the domestic workings of constitutional dialogue in Germany, but this is something that might one time come to light.)

On a pessimistically dystopian note, the above events might in reality be foreshadows of a scenario where if the German government would like “put their money where their mouth is”, they would need to initiate and promote legislation curtailing the powers and competences of their own constitutional court, an unquestionable symbol of German legal and constitutional culture, and an organ that may very well act as a guardian of the floodgates of EU integration and of the national constitution against executive overreach when it comes to legislation. Another problem with this statement is that it gives the impression that maintaining national sovereignty no longer seems a key issue for the German executive. “Using all means to actively avoid an ultra vires finding” might just as well mean that Germany no longer intends question anything as far as EU law goes and basically switches off an emergency break put in place for exigent circumstances, thereby dissolving its sovereign powers in the integration. This is no longer sovereignty transfer, no longer sovereignty pooling. This places no further emphasis on essential state functions and fundamental constitutional structures inherent to constitutional identity. At the very least this signals shortsightedness. In a different context, one might wonder, if a different German government would have chosen their words more carefully.

If – focusing on loyalty – we try and apply the allegory of marriage to describe the European integration and the internal dynamics of a Member State’s separation of powers and checks and balances, then two arguments can be made.

(i) European integration is (unfortunately) not a marriage without the possibility of divorce, but it is built on loyal cooperation between the Union and its Member States, despite the different interpretations of the principle that might apply;

(ii) The branches of public power within the Member States (fortunately) live in such a marriage: one without the possibility of divorce.

Turning back to the title of this post under this second angle, I asked: “Is this loyalty in fact disloyalty?” However, I could ask an additional question as well: “If yes, then against whom?”

Ideally, the two spouses (herein the Government and the Constitutional Court) should do everything in their power to engage in meaningful dialogue on the basis of – but at least not completely disregarding – this inherent loyalty (fine-tuned by checks and balances) to try and resolve their problems in lieu of solidifying fault-lines in and by their interactions. In borrowing from Garner, Lindahl and Tuori, I would like to add that these fault-lines are indicators that emerge “between what a [legal] collective can order – the orderable – and what it cannot order – the unorderable”.

In any case, such an executive reference – even if its veiled our turns out to be unfulfilled – on the principle of loyalty can indeed be considered in itself as a declaration of disloyalty to the internal equilibrium of the checks and balances working within Germany, creating fault-lines. In other words, without prejudice to whatever obligations might fall on Germany as a Member State arising out of the principle of loyalty in the Treaties, it shall never – not even by way of veiled references of executive overreach – disregard its duty of (loyalty construed as) fidelity to upholding the rule of law and the internal balance of the national legal order. This – logically – can only be maintained, if no constitutional actors are stripped of their core competences in watching over European integration and the jointly exercised competences. Constitutional courts are well within their rights to set (counter)limits and boundaries, and prevent the creation of fault-lines, and they shall not be prevented from doing so.

To use a familiar turn of phrase regarding the German case: Solange (as long as) this is not the case, serious doubts are cast on any relevant actions of the executive in light of the deep-seeded constitutional responsibility of Germany for the EU integration, called Integrationsverantwortung, allowing its national bodies, and first and foremost the GFCC to set constitutional counter-limits to it in order to realize the Integrationsprogramm.

Since I mentioned Solange, it is important to bear in mind the fact that by this statement, the German Government seems not only to go against the rationale of the PSPP judgment, but also the entire well-established German constitutional jurisprudence that provided the direct footing of its constitutional arguments, dating back actually to the 1970s, when Solange I was born.

Hain and Ferreau address this issue by alluding to the government’s control over the exercise of its responsibility for integration (developed in their 2009 Lissabon-Urteil, BVerfGE 123, 267, commonly referred to as Integrationsverantwortung – and based on which legislative commitments have also been made in that same year.

In this angle, it is interesting but not surprising, that when e.g. in Hungary the same approach was taken at the time when the Constitutional Court (HCC) abolished the Interim Measures of the Fundamental Law, and the constitutional legislator decided to put most of the annulled provisions back into the constitution by amendment contrary to the HCC’s ruling, at this moment everyone in Europe cried the death of the rule of law as one.

Now, I appreciate that no actual laws have yet been “put in motion” in Germany following up on this executive commitment (so this way the Hungarian analogy is only partially applicable), but it would be interesting to see how the story unfolds and what tone will the eventual, if any, (international) critics use in commenting on developments.

Working toward reaching the conclusions, one more remark: I am well aware that it is chic these days to act as if – along with national sovereignty and national constitutions – national constitutional courts were outdated constructs. What’s more, they are dinosaurs that need to be chased to the edge of extinction, because they do not fulfil any meaningful purpose and are seen to obstruct the effet utile of EU law. However, there are indeed lines in the sand that should not be crossed by anyone who feels a constitutional responsibility to work toward maintaining the internal balance of the integration and of domestic power structures between constitutional organs.

This German case is just as much similar to an ELE (extinction-level event) as the crusade that has been initiated by the Romanian Court of Cassation against the Romanian Constitutional Court. This latter case asked the CJEU to take into consideration whether it should be allowed that an ordinary national court disregard the otherwise erga omnes binding decision of a national constitutional court if it considers that the effet utile of EU law so requires, against established national regulations and practices. In their judgment handed down on 21 December 2021, in joined cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 et C‑840/19, they replied to this question in the affirmative – presumably subjecting the decision to further scrutiny in the months to come.

Without going into the specifics of the case, which is not my goal here, in the abstract, the far-reaching ripple-effects of opening such a line of argumentation under the guise of primacy of EU law forces to ask ourselves some hard questions in terms of our (dis)loyalty to the settled constitutional arrangements and (institutional) structures of our rule-of-law democracies.

  • Are constitutional courts really carnivorous dinosaurs, that need to be kept on a very tight leash, if not driven to extinction?
  • Are developments in this general spirit the first markers of overarching European political and judicial movements to abolish the inherent dualistic structure of apex courts in all countries that have adopted such a model over time and to create a monolithic system spearheaded by Supreme Courts that might or might not have powers of constitutional adjudication?
  • Does the constitutionally defined “erga omnes” (i.e. binding on everyone) effect of constitutional court decisions really no longer subsume ordinary, lower courts under “everyone” in terms of constitutional review and interpretation?

As you can see, there are more questions raised than answers that can be provided. Among them, the most important: If we keep this up, what else remains that we can be (dis)loyal to?

Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: msulyok@mcc.hu

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