Heinrich Weiss and Others v Bundesregierung and Others.

• Jurisdiction: European Union
• Celex Number: 62017CJ0493
• ECLI: ECLI:EU:C:2018:1000
• Docket Number: C-493/17
• Date: 11 December 2018
• Court: Court of Justice (European Union)
• Procedure Type: Cuestión prejudicial - inadmisible

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

11 December 2018 (*)

(Reference for a preliminary ruling — Economic and monetary policy –– Decision (EU) 2015/774 of the European Central Bank — Validity — Secondary markets public sector asset purchase programme — Articles 119 and 127 TFEU — Powers of the ECB and the European System of Central Banks — Maintenance of price stability — Proportionality — Article 123 TFEU — Prohibition of monetary financing of Member States in the euro area)

In Case C‑493/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesverfassungsgericht (Federal Constitutional Court, Germany), made by decision of 18 July 2017, received at the Court on 17 August 2017, in the proceedings brought by

Heinrich Weiss and Others,

Bernd Lucke and Others,

Peter Gauweiler,

Johann Heinrich von Stein and Others,

Interested parties:

Bundesregierung,

Bundestag,

Deutsche Bundesbank,

THE COURT (Grand Chamber),

Composed of K. Lenaerts, President, A. Prechal, M. Vilaras, E. Regan, T. von Danwitz, C. Toader and C. Lycourgos, Presidents of Chamber, A. Rosas, E. Juhász, M. Ilešič, L. Bay Larsen (Rapporteur), M. Safjan, D. Šváby, C.G. Fernlund and C. Vajda, Judges,

Advocate General: M. Wathelet,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 10 July 2018,

after considering the observations submitted on behalf of:

– Mr Weiss and Others, by C. Degenhart,

– Mr Lucke and Others, by H.-D. Horn and G. Beck, Barrister,

– Mr Gauweiler, by D. Murswiek,

– Mr von Stein and Others, by M.C. Kerber, Rechtsanwalt,

– the Deutsche Bundesbank, by A. Guericke, acting as Agent, and by U. Soltész, C. von Köckritz and B. Herz, Rechtsanwälte,

– the German Government, by T. Henze, J. Möller and U. Häde, acting as Agents,

– the Greek Government, by K. Boskovits, S. Charitaki and A. Magrippi, acting as Agents,

– the French Government, by D. Colas, D. Segoin and E. de Moustier, acting as Agents,

– the Italian Government, by G. Palmieri, acting as Agent, and by F. De Luca and P. Gentili, avvocati dello Stato,

– the Portuguese Government, by L. Inez Fernandes, M. Figueiredo, T. Larsen and P. Machado, acting as Agents,

– the Finnish Government, by S. Hartikainen, acting as Agent,

– the European Commission, by L. Flynn, J.-P. Keppenne, C. Ladenburger and B. Martenczuk, acting as Agents,

– the European Central Bank (ECB), by C. Zilioli, K. Kaiser and C. Kroppenstedt, acting as Agents, and by H.-G. Kamann, Rechtsanwalt,

after hearing the Opinion of the Advocate General at the sitting on 4 October 2018,

gives the following

Judgment

1 This request for a preliminary ruling concerns the validity of Decision (EU) 2015/774 of the European Central Bank of 4 March 2015 on a secondary markets public sector asset purchase programme (OJ 2015 L 121, p. 20), as amended by Decision (EU) 2017/100 of the European Central Bank of 11 January 2017 (OJ 2017 L 16, p. 51) (‘Decision 2015/774’), and the interpretation of Article 4(2) TEU and Articles 123 and 125 TFEU.

2 The request has been made in the context of four constitutional actions brought by Mr Heinrich Weiss and others, Mr Bernd Lucke and others, Mr Peter Gauweiler and Mr Johann Heinrich von Stein and others, concerning the applicability, in Germany, of various decisions of the European Central Bank (ECB), the participation of the Deutsche Bundesbank (German Central Bank) in the implementation of those decisions or its alleged failure to act with regard to those decisions, and the alleged failure of the Bundesregierung (Federal Government, Germany) and the Deutscher Bundestag (Lower House of the German Federal Parliament), to act in respect of that participation and those decisions.

Legal context

Decision 2015/774

3 Recitals 2 to 4 and 7 of Decision 2015/774 are worded as follows:

‘(2) On 4 September 2014, the Governing Council decided to initiate a third covered bond purchase programme (hereinafter the “CBPP3”) and an asset-backed securities purchase programme (ABSPP). Alongside the targeted longer-term refinancing operations introduced in September 2014, these asset purchase programmes are aimed at further enhancing the transmission of monetary policy, facilitating credit provision to the euro area economy, easing borrowing conditions of households and firms and contributing to returning inflation rates to levels closer to 2%, consistent with the primary objective of the ECB to maintain price stability.

(3) On 22 January 2015, the Governing Council decided that asset purchases should be expanded to include a secondary markets public sector asset purchase programme (hereinafter the “PSPP”). Under the PSPP the [national central banks], in proportions reflecting their respective shares in the ECB’s capital key, and the ECB may purchase outright eligible marketable debt securities from eligible counterparties on the secondary markets. This decision was taken as part of the single monetary policy in view of a number of factors that have materially increased the downside risk to the medium-term outlook on price developments, thus jeopardising the achievement of the ECB’s primary objective of maintaining price stability. These factors include lower than expected monetary stimulus from adopted monetary policy measures, a downward drift in most indicators of actual and expected euro area inflation — both headline measures and measures excluding the impact of volatile components, such as energy and food — towards historical lows, and the increased potential of second-round effects on wage and price-setting stemming from a significant decline in oil prices.

(4) The PSPP is a proportionate measure for mitigating the risks to the outlook on price developments, as it will further ease monetary and financial conditions, including those relevant to the borrowing conditions of euro area non-financial corporations and households, thereby supporting aggregate consumption and investment spending in the euro area and ultimately contributing to a return of inflation rates to levels below but close to 2% over the medium term. In an environment where key ECB interest rates are at their lower bound, and purchase programmes focusing on private sector assets are judged to have provided measurable, but insufficient, scope to address the prevailing downside risks to price stability, it is necessary to add to the Eurosystem’s monetary policy measures the PSPP as an instrument that features a high transmission potential to the real economy. Thanks to its portfolio re-balancing effect, the sizable purchase volume of the PSPP will contribute to achieving the underlying monetary policy objective of inducing financial intermediaries to increase their provision of liquidity to the interbank market and credit to the euro area economy.

...

(7) In terms of the size of the PSPP, the ABSPP and the CBPP3, the liquidity provided to the market by the combined monthly purchases will amount to EUR 60 billion. Purchases are intended to be carried out until the end of September 2016 and will, in any case, be conducted until the Governing Council sees a sustained adjustment in the path of inflation which is consistent with its aim of achieving inflation rates below, but close to, 2% over the medium term.’

4 Article 1 of Decision 2015/774 provides:

‘The Eurosystem hereby establishes the PSPP under which the Eurosystem central banks shall purchase eligible marketable debt securities, as defined in Article 3, on the secondary markets, from eligible counterparties, as defined in Article 7, under specific conditions.’

5 Article 3 of that decision provides:

‘1. Subject to the requirements laid down in Article 3, euro-denominated marketable debt securities issued by central, regional or local governments of a Member State whose currency is the euro, recognised agencies located in the euro area, international organisations located in the euro area and multilateral development banks located in the euro area shall be eligible for purchases by the Eurosystem central banks under the PSPP. In exceptional circumstances, where the envisaged purchase amount cannot be attained, the Governing Council may decide to purchase marketable debt securities issued by other entities located in the euro area ...

2. In order to be eligible for purchases under the PSPP, marketable debt securities shall comply with the eligibility criteria for marketable assets for Eurosystem credit operations pursuant to Part Four of Guideline (EU) 2015/510 of the European Central Bank [of 19 December 2014 on the implementation of the Eurosystem monetary policy framework (ECB/2014/60) (OJ 2015 L 91, p. 3)], subject to the following requirements:

(a) the issuer or guarantor of the marketable debt securities shall have a credit quality assessment of at least Credit Quality Step 3 in the Eurosystem’s harmonised rating scale ...

...

(d) if the credit assessment ... for the issuer, guarantor or issue does not comply with at least Credit Quality Step 3 in the Eurosystem’s harmonised rating scale, marketable debt securities shall be eligible only if they are issued or fully guaranteed by the central governments of euro area Member States under a financial assistance programme and in respect of which the application of the Eurosystem’s credit quality threshold is suspended by the Governing Council ...

(e) in the event of a review of an ongoing financial assistance programme, eligibility for PSPP purchases shall be suspended and shall resume only in the event of a positive outcome of the review.

3. In order to be eligible for purchase under the PSPP, debt securities, within the meaning of paragraphs 1 to 2, shall have a minimum remaining maturity of 1 year and a maximum remaining maturity of 30 years at the time of their purchase by the relevant Eurosystem central bank. In order to facilitate smooth implementation, marketable debt instruments with a remaining maturity of 30 years and 364...