Brussels has started legal proceedings against Germany for an alleged violation of the “principle of the primacy of EU law” by the country’s constitutional court.
The “infringement procedure” is the result of a ruling last year by the German federal constitutional court in Karlsruhe that allegedly undermined the pre-eminence of the European court of justice (ECJ).
The German court had contradicted the ECJ by instructing Berlin to delay the approval of a program to buy multi-million dollar bonds from the European Central Bank due to concerns that it was being diverted towards financing member states, something that it claimed , was not allowed under the founding treaties of the EU.
The constitutional court later ruled that the bond buying could continue, but in a statement Wednesday, the European Commission said the initial decision set “a dangerous precedent for [European] Union law, both for the exercise of the German Constitutional Court itself and for the supreme and constitutional courts and the courts of other Member States ”.
“The German court deprived a judgment of the European court of justice of its legal effect in Germany, violating the principle of the primacy of EU law,” said a spokesman for the commission.
The German government now has two months to respond to a letter from the commission on the case, which could ultimately lead to hefty fines issued by the ECJ in Luxembourg.
The commission’s spokesman said: “It is up to the member state to identify possible solutions. Any solution must be in line with EU law and respect the primacy principle of EU law. “
At the core of the dispute is the 2020 German constitutional court ruling that the European Central Bank’s bond purchase program could be illegal unless each purchase is shown to be necessary. The court also stated that the ECJ had acted ultra vires (beyond its powers) by approving the bond purchase.
The ECJ had responded vigorously at the time by issuing a statement asserting that it “only” had “jurisdiction to find that an act of an EU institution is contrary to EU law.”
That response was a reflection of growing concern in Brussels about the fragmentation of the EU legal order. The commission’s notification letter to the German government, in turn, highlights anxiety in Brussels that the behavior of the Karlsruhe court could encourage those in Poland and Hungary to act similarly.
“This could threaten the integrity of [EU] law and could lead the way to a ‘Europe to the letter‘”Said a commission spokesperson. “The last word on EU law is always spoken in Luxembourg.”
The ECJ has also issued a series of rulings on Polish laws that have pitted it against Warsaw. In 2019, the highest court in the EU said Poland had broken the law when it tried to lower the retirement age of judges.
The ECJ found that a 2017 policy to lower the retirement age of ordinary judges in Poland was illegal because it gave too much power to the executive, and that a decision to force female judges to retire five years before men violated the law of EU equality.
Both Poland and Hungary are also currently subject to Article 7 investigations for claims that they have undermined the rule of law, a process that could theoretically lead countries to lose the right to vote in EU institutions.