European Union

The authors present their proposal, written in the form of a Position Paper, for the creation of a Mixed Chamber at the Court of Justice as a means, in part, of addressing the issues highlighted by the May 5th Weiss decision of the German Constitutional Court. This Chamber, to be composed of sitting members of the Court of Justice of the EU alongside judges of constitutional courts of the Member States, would have jurisdiction to solve, in last instance, conflicts of competence between the Union and its Member States.

A few weeks ago, we published a proposal, in the form of a Position Paper, for the creation of a Mixed Chamber at the Court of Justice as a means, in part, of addressing the issues highlighted by the May 5th Weiss decision of the German Constitutional Court. This Chamber, to be composed of sitting members of the Court of Justice of the EU alongside judges of constitutional courts of the Member States, would have jurisdiction to solve, in last instance, conflicts of competence between the Union and its Member States. The full details may be found here in the original Position Paper (republished on CERIDAP.eu). The proposal has stirred a lively debate and produced constructive comments and critiques from colleagues and friends from many quarters. We are honored by the attention received and the best way to acknowledge our critics is by providing reasoned replies to their comments. We received two kinds of remarks: Macro and Micro. The Macro critiques target the proposal’s convenience and its general defects in the broad sense. These are principled critiques that deserve also a principled reply. At the Micro level we received detailed inquiries into specific aspects of the proposal, questioning a particular point here or there. We will address most of them accordingly. We will end with a more elaborate description of some of the procedural aspects of our Proposal which consider several of the comments we have been receiving.

From the point of view of European Union law, this the first time that the BVerfG concretizes its threat not to implement the decisions of the EU Court of Justice, which was already expressed in several of its previous judgments and, in particular, in its judgment on the Lisbon Treaty of 2009. The reasoning of the Karlsruhe judges reveals, however, gaps and errors. I will first refer to the most relevant legal errors (par. II). I will then briefly refer about the consequences of such violations of EU law (par. III).

The 50/2009 directive has created a fast tracking admission system for highly qualified third-countries workers, but after more than ten years from its adoption, it has not led to the expected results. The need of a reform appeared immediately clear. Germany has been the only European State to exploit the potential of the Blue Card. The data analysis shows that a key role was played by the German university system and the ability to attract international students. Most Blue Card owners, in fact, entered the Country with a student visa and later turned it into a different residence permit.

Approaching the summer season, the destiny of beach resorts and establishments is a subject of notable interest, because it also raises unresolved questions from the point of view of the relationship, often full of contradictions, between national administrative law and the principles of European Union law. Therefore, clear rules need to be defined in order to allow the summer season to take place safely both for operators and tourists. It is also of paramount importance to overcome the inertia of the legislator with regard to the reform of this sector, concerning overall the expiry of ongoing concessions on the basis of the principles of public evidence established by the EU Treaties and by the “Services Directive” 123/2006/CE (which includes in its scope of applications maritime, lake and river concessions). In this sense, the emergency could be the right moment to adopt measures that take into account each specific situation as to protect the legitimate expectations of the concession holders (in any case in compliance with what has already been affirmed by the EU Court following a preliminary ruling in joined cases C-458/14 e C-67/15, Promoimpresa e sig. Melis. In addition this allows to make further reflections on "Emergency Administration" on the bases of the provisions suggested by the technical committees in order to contain contagion from Covid19 and concerning also the seaside businesses.  Decisions required to deal with the crisis must certainly be inspired by the precautionary principle, but they must also respect the principle of proportionality as to limit unsuitable effects on other emerging interests, including the impact on the stability of the EU single market (of services).

This article analyses the recent decision of the German Constitutional Court, where it considered that the PSPP (Public Sector Purchase Programme) adopted by the ECB (European Central Bank) was ultra vires. The author undertakes an in-depth analysis of the relationship between the European Court of Justice (ECJ) and the constitutional courts of the Member States, also touching upon the fundamental principles of EU law underpinning such judicial cooperation, which is one of the main features of the Union’s judicial architecture. Such analysis leads to the conclusion that the German Constitutional Court misconstrued, inter alia, the principles of conferral and proportionality and threatened the very foundations of the EU legal order, of its integrity and autonomy, by replacing judicial cooperation with judicial confrontation and by ignoring the principle of equality of Member States before the Treaties and the principle of sincere cooperation between the Union and its Member States. Moreover, the decision of the German Constitutional Court defies the exclusive competences conferred to the ECJ by the Treaties, thus undermining the rule of law at the heart of the European Union. It also seriously endangers the independence of the ECB and the ESCB, including the Bundesbank, in performing their tasks in the field of monetary policy. Some final words are devoted to an assessment of the immediate consequences of the judgment, as well as possible ways to overcome it.

The judgment of 5 May 2020 of the Zweiter Senat of the Bundesverfassungsgericht, to the extent that it expresses the German constitutional judge's claim to assess the legality of the ECB's decisions on the basis of the principles of attribution and proportionality, is more than questionable in point of law. Furthermore, it is extremely dangerous: and not only because it implies that the Zweiter Senat ultimately refuses, on the basis of the democratic principle and the control of the Union's competences, the uniformity of application of EU law. But also because it appears as the glaring demonstration of a form of “cultural bullying” many complain about, and which emerges in a crystal clear way in the reasoning carried out on proportionality. This is an attitude which, in the contingency caused by the COVID-19 emergency, could have truly tragic consequences for the future of the European Union.

The reasoning of the German Constitutional Court judges to prohibit the Bundesbank from buying Sate securities on the secondary market if the ECB does not demonstrate within three months the proportionality of its decisions under the PSPP programme is not sustainable. Instead, the judges, who demonstrate unfounded intellectual arrogance in their claim to interpret EU law, make manifest errors in applying the principle of proportionality to the delimitation of competences between the Union and the Member States. They also make methodological errors in their application of the principle of proportionality to ECB decisions, while highlighting their prejudices in the field of monetary and economic policy.

With the judgment of 15 April 2020, 1 BvR 828/20, the German Federal Constitutional Court ruled that the municipal administration of the town of Giessen must re-evaluate the request of authorization to hold a demonstration in a public place, presented by a German citizen and already rejected by the same administration, in light of the considerations on the exercise of administrative discretion carried out by the Court itself. According to the Constitutional Judge, in cases such as this, administrative discretion must in fact be exercised primarily in order to protect rights which, otherwise, an administrative provision could compress to the point of making it impossible to exercise.

This paper answers to some questions on the relationship between the European Union and Italy in this period of crisis caused by the coronavirus pandemic.