Thread by @onethuthree

The @EU_Commission is bringing an infringement procedure against Germany because of the BVerfG's PSPP judgment of May last year.

A thread on why I think this makes a lot of sense:

1/ Reminder: On 5 May 2020 the German Federal Constitutional Court put Europe in a turmoil when, for the first time in its history, it declared a ruling by the European Court of Justice ultra vires, and therefore not legally binding on Germany.

2/ This was, of course, quite the blow to the European legal order: The ruling called into question not just the authority of the ECJ as the sole arbiter of the validity of EU law but also the notion of supremacy of EU law and its uniform application in member states.

3/ @ChamonMerijn and I analysed this further in our @DelorsBerlin policy paper, in which we put the ruling into legal and historical context and explained its significance also in light of other (German) judgments:
delorscentre.eu/en/publication…

4/ In the paper we also assessed Commission's response options to the ruling and called for an action of infringement to be launched. While there are good reasons for the Commission to do nothing, we argued that there were even better reasons for it to do something.

5/ One obvious argument in favour of doing nothing is that on substantive grounds the dispute was always likely to just fizzle out and is by now, in fact, resolved. See also @lucasguttenberg's critical take on this:

https://twitter.com/lucasguttenberg/status/1394576797619171330

6/ The second argument for doing nothing is that it is also doubtful what the outcome of an infringement procedure will be in this case. After all, it is not as if the German government - the real addressee of the action - can rectify a judicial infringement of EU law.

7/ Both these arguments are valid. And still, I would argue that it is good that the Commission is bringing an infringement action. As mentioned above, the BVerfG's ruling evoked concerns not just in relation to its practical impact on the ECB's programmes,

8/ but also in relation to the authority of EU law, and the possible (ab)use of the ruling by other member states, which might cite it as a precedent justifying their own non-compliance with judgments from Luxembourg.

9/ An infringement procedure is thus less about the possible outcomes and more a matter of principle to signal that the Commission, as the guardian of the Treaties, will not accept breaches of EU Treaty obligations, no matter the member state or authority in breach of EU law.

10/ (Not something that the current Commission has always been very successful in thus far, I am afraid.)

11/ But hence it is all the more important that the Commission is now sending a signal also to other member states and national courts, including the ones in PL and HU, that non-compliance with ECJ judgments is not something it simply accepts.

12/ It also reaffirms the notion of equality between member states. Simply letting the German ruling slide while not affording the same slack to other countries, would have, whether justified or not, reinforced the impression that some member states are more equal than others.

13/ In a time in which respect for EU law cannot always be taken for granted anymore, I'd say it is a positive sign that the Commission is giving up its cautious approach, at least in this particular case.