An Exercise in Legal Honesty: Rewriting the Court of Justice and the Bundesverfassungsgericht

Published date01 July 2015
Date01 July 2015
An Exercise in Legal Honesty: Rewriting
the Court of Justice and the
Michelle Everson*
Abstract: This article contains an urgent plea for the re-establishment of legal honesty
in Europe. European law is a victim of European economic crisis. The emergence of the
concept of conditionality within national and European jurisprudence, or the judicial
imposition of a market discipline upon national budgets, is also a part of a chronicle
foretold given in the face of the volatile power of international finance markets. Yet, in
rewriting the judgements given by the Court of Justice in the case of Thomas Pringle and
by the German Constitutional Court in its matching jurisprudence on the European
Stability Mechanism, this article seeks to overcome the destruction of constitutionality
within Europe, the foreclosure of a European space for the politics of alternatives and the
condemning of individual Europeans to lasting suffering within a perpetual austerity
I The Economics of Judging
The 2014 Outright Monetary Transactions (OMT) judgement of the
Bundesverfassungsgericht, or the German Federal Constitutional Court (FCC), is
striking for many reasons.1Above all, for scholars of European law, the decision must
be viewed as only the last of very many gauntlets thrown down by the FCC before the
Court of Justice of the European Union (CJEU) during the protracted course of a
bad-tempered inter-jurisdictional dialogue, wherein the German Court has repeatedly
reasserted the sovereignty of its constitutional order against the supremacy of
European law.2For all that OMT resistance is cunningly disguised in a seemingly
* Professor of Law, Birkbeck College School, London, UK. This contribution forms a part of an ongoing
effort to identify a new basis for the legitimacy of European, conducted jointly and severally with
Christian Joerges, University of Bremen and Hertie School of Governance, Berlin. Differences do remain
in our theoretical positions, hence this individual essay. Nevertheless, the congruence between pluralist
and conflict of law approaches to the topic is also readily apparent. See, for example, M. Everson
and C. Joerges, ‘Who is the guardian for constitutionalism in Europe after the financial crisis?’, in
J.E. Fossum and A.J. Menéndez (eds.) Europe in crises or Europe as the crisis?, (ARENA, 2014),
pp. 369–386.
1BverfG, 2BvR 2728/13, of 14.01.2014 (para 1–105).
2A process famously beginning with the FCC’s ‘solange jurisprudence’ asserting its rights to uphold
the fundamental rights of the German constitutional order and reaching its peak in its Judgement on the
Maastricht Treaty (Brunner v. European Union Treaty, CMLR 57 [1994] 1).
European Law Journal, Vol. 21, No. 4, July 2015, pp. 474–499.
© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
submissive preliminary reference to the CJEU, seasoned observers of FCC–CJEU
interaction will not be fooled. Asked whether the OMT Decision taken by the Council
of the European Central Bank (ECB) to purchase state bonds on secondary markets3
was an ultra-vires act, violating the inflationary and cross-subsidisation prohibitions
laid down by the European Treaty (Articles 119, 127 and 123 TFEU), and whether
contemporaneously the German Parliament (Bundestag) had failed in its constitu-
tional duty to challenge the OMT, the FCC deferred to the CJEU, but did so by
posing a question to the European Court, which contained its own pre-emptive
answer: should the CJEU not accord with the limitations to the reach of the OMT
Decision proposed by the FCC—above all, the requirement of ‘conditionality’ in
bond purchasing4—the constitutional justices will assert their own sovereign
competence to judge upon the compatibility of European law with the German
For constitutional lawyers and legal theorists, OMT holds an even greater fascina-
tion. Taking detailed oral evidence from ECB specialists, the German Court ventured
far away from conventional constitutional methodology, burrowing deeply into
economic theory, taking note of the ‘bank-state-nexus’ linking private with sovereign
debt in an ‘incalculable’ host of market transactions (para 97), in its CJEU-
constraining conclusion that, absent OMT ‘conditionality’ designed to curb the
‘moral hazard’ (borrowing) of debtor EU Member States, the German Bundestag
would no longer be the ‘master of its decisions’ (para 102). The dependence of the
FCC upon a grammar of economics, in order to ensure that national parliamentarians
could not be frustrated in their constitutional duty to prevent unlimited German
liability for Eurozone financing, is nonetheless highly controversial, not least within
the Court itself. OMT is also a landmark decision within the constitutional history
of the Federal Republic. Accompanied not by one, but by two of the rarest of all
creatures within German juridical discourse, dissenting opinions, the judgement
contains its own trenchant self-critique, expressed most forcefully by Justice
Judicial competences do not (at least de jure) depend on the greater or lesser courage of the judges. But
where for reasons of law the judges’ courage must dwindle when it comes to the substance, they ought
not to go into the substance at all.6
For Justice Lübbe-Wolff, the FFC had committed its own ultra vires act. The
decision of the German Parliament not to challenge the OMT Decision before the
CJEU lay within its political discretion, and was the Bundestag’s alone. Engaging in
a substantive review of ‘manifest error’ within that omission, the Court had
3Within the ambit of the European Financial Stability Facility (EFSF) and the European Stability
Mechanism (ESM), each forming a part of the ersatz law created by the Union to address the sovereign
debt crisis within the Eurozone; see below Section III, n 24.
4In other words, bonds of debtor nations must not be purchased to ‘an unlimited amount’ (OMT
Judgement, note 1 above, para 100).
5First asserted in the Maastricht Judgement (n 2 above). As this article goes to press, academic commen-
tators will be puzzling on the question of whether AG Cruz Villalón, presenting his arguments to the
CJEU for the upcoming European OMT case (Case C-62/14), has or has not acceded to FCC demands
(, available at the curia website ( The ruling of the ECJ itself
seems, however, less prone than its AG to build bridges with the structure and substance of OMT ruling
of the German Constitutional Court.
6Dissenting opinion of Justice Lübbe-Wolff, OMT Judgement, note 1 above, para 28.
July 2015 An Exercise in Legal Honesty
© 2015 John Wiley & Sons Ltd.

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