I'm perplexed by some of the "commentary" on the German Federal Constitutional Court's recent "Eurozone PSPP" ruling - evidently by people who haven't even read the judgment. Law colleagues will offer more detailed and expert analysis in due course, but a few thoughts for now:
1) does the FCC lay down new constitutional principles governing the relationship between EU law and the German legal system? Not really: this is essentially the application of existing principles (on scrutiny of EU action against limits of EU power) to a new factual situation.
2) So is FCC's application of existing constitutional principles to particular context of PSPP dispute legally persuasive? Again, not really. FCC says: we'll respect ECJ having different understanding of relevant legal principles, so long as it's not arbitrary or incomprehensible
3) but FCC immediately proceeds to sweep aside ECJ's perfectly orthodox approach (basically, judges should respect expertise of policymakers) in favour of its own (highly activist, essentially subjective) detailed and prescriptive interpretation of what the law requires here
4) to be fair: one might interpret the ruling as meaning that the FCC merely asked the ECB to give more detailed reasons for its actions, i.e. an essentially procedural requirement, simply aimed at improving good governance, transparency and accountability...
5) yet the ruling does sound like the FCC asked the ECB not only to give reasons, but reasons the judges would also think are "good ones". Now please... are constitutional lawyers really best placed to make such detailed substantive choices about how to manage the economy?
6) Or is this an example of how an over-zealous application of the requirement of proportionality, defined according to the subjective policy preferences of the courts, risks “rule by judges” of the sort that raises serious questions of competence, legitimacy and accountability?
7) Moreover, maybe FCC should have had a taste of its own medicine before forcing it on everyone else... Having criticised ECB for "not thinking about broader implications of its actions", one wonders whether FCC gave much thought to broader ramifications of its own ruling here?
8) e.g. isn't there something of a double standard at work, when FCC expresses no concern about economic impacts of this ruling, in the midst of the most serious crisis in the whole modern era, & esp when latter sort-of-renders much of its own economic forecasting redundant?
9) In any case: no surprise that Europhobes would distort & instrumentalise this ruling for their own ulterior ends. Or that certain governments would seize on it to try to "justify" their own ever more repressive political practices within the context of democratic backsliding.
10) So: the problem here isn't that the FCC exercised its (longstanding) power of judicial review in relation to EU action. The problem is that the FCC chose to do so in this particular case based on such unpersuasive reasoning and with apparent unconcern for the consequences?
