Opinion of Advocate General Wathelet delivered on 4 October 2018.

• Jurisdiction: European Union
• Celex Number: 62017CC0493
• ECLI: ECLI:EU:C:2018:815
• Docket Number: C-493/17
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 04 October 2018

Provisional text

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 4 October 2018 (1)

Case C‑493/17

Heinrich Weiss,

Jürgen Heraeus,

Patrick Adenauer,

Bernd Lucke,

Hans-Olaf Henkel,

Joachim Starbatty,

Bernd Kölmel,

Ulrike Trebesius,

Peter Gauweiler,

Johann Heinrich von Stein,

Gunnar Heinsohn,

Otto Michels,

Reinhold von Eben-Worlée,

Michael Göde,

Dagmar Metzger,

Karl-Heinz Hauptmann,

Stefan Städter,

Markus C. Kerber

(Request for a preliminary ruling from the Bundesverfassungsgericht (Federal Constitutional Court, Germany))

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

Table of contents

I. Introduction

II. Legal framework

A. The FEU Treaty

B. The Protocol on the ESCB and the ECB

C. Decision 2015/774

1. The consolidated text of Decision 2015/774

2. The recitals of Decision 2015/774 and the decisions which amended them

(a) The recitals of Decision 2015/774

(b) The recitals of Decision 2015/2101

(c) The recitals of Decision 2015/2464

(d) The recitals of Decision 2016/702

(e) The recitals of Decision 2017/100

III. The facts of the cases in the main proceedings

A. The principal features of the PSPP

B. The main proceedings and the order for reference

IV. The request for a preliminary ruling and the procedure before the Court

V. Analysis

A. Preliminary remark on the relevant version of Decision 2015/774

B. Admissibility of the request for a preliminary ruling

C. The first and second questions referred for a preliminary ruling

1. The analytical framework established in the judgment of 16 June 2015, Gauweiler and Others (C62/14, EU:C:2015:400)

2. The application of the principles to the PSPP

(a) The lack of certainty among operators

(1) The adequacy of the guarantees provided for in Decision 2015/774 (Question 1, including (a) and (b))

(2) The holding of bonds until maturity and the purchase of bonds at a negative yield have no impact (Question 1(c) and (d))

(i) The holding of bonds until maturity

(ii) The purchase of bonds at a negative yield

(3) The alleged ability to determine the securities that will be purchased has no impact on the validity of Decision 2015/774 (Question 1(a) and Question 2)

(b) The impetus to follow a sound budgetary policy

3. Conclusion on the first and second questions

D. The third and fourth questions

1. The analytical framework established in the judgments of 27 November 2012, Pringle (C370/12, EU:C:2012:756), and of 16 June 2015, Gauweiler and Others (C62/14, EU:C:2015:400)

(a) The definition of monetary policy

(b) The principle of proportionality and the scope of the related judicial review

2. The application of the principles of the PSPP

(a) Compliance with the mandate of the ECB

(1) The objective of and the instruments used by the PSPP

(2) The indirect effects of the PSPP

(i) Theoretical considerations with regard to the relationship between monetary policy and economic policy and the scope of judicial review

(ii) The PSPP guarantees that limit its impacts in terms of economic policy

(b) The proportionality of the PSPP

(1) The ability of the PSPP to achieve the objectives of the ESCB and the need for it

(2) The proportionality stricto sensu of the PSPP

3. Conclusion on the third and fourth questions

VI. Conclusion

I. Introduction

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, (2) as amended by Decision (EU) 2015/2101 of the European Central Bank of 5 November 2015 (3) and by Decision (EU) 2016/702 of the European Central Bank of 18 April 2016 (4) (‘Decision 2015/774’), and the interpretation of Article 4(2) TEU, Articles 119, 123, 125 and 127 TFEU, and Articles 17 to 24 of Protocol No 4 on the Statute of the European System of Central Banks and of the European Central Bank (5) (‘the Protocol on the ESCB and the ECB’).

2. The request has been made by the Bundesverfassungsgericht (Federal Constitutional Court, Germany) in the context of a series of constitutional actions concerning the applicability, in the Federal Republic of Germany, of various decisions of the European Central Bank (ECB), the participation of the Deutsche Bundesbank (German Central Bank, Germany) 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, Germany), to act in respect of that participation and those decisions.

3. The judgment of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400) is inevitably reflected in this new case. On the one hand, the request for a preliminary ruling has once again been made to the Court by the Bundesverfassungsgericht (Federal Constitutional Court) in proceedings seeking to establish that an act of the ECB is manifestly ultra vires and is not compatible with German constitutional identity. On the other hand, the acts at issue in the present case and in the case which gave rise to the judgment of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400) both relate to ‘unconventional’ ECB programmes which are said to fall outside the realm of monetary policy and undermine the prohibition of monetary financing laid down in Article 123 TFEU.

4. However, the judgment of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400) concerned an ECB press release which gave details of a decision authorising a programme for the purchase of government bonds issued by States of the euro area — transactions which were to be known as Outright Monetary Transactions (OMTs), which had not — and, to date, have never — been implemented. By contrast, the secondary markets public sector asset purchase programme (‘the PSPP’) at issue in the present case has not only been formally adopted, but has also been implemented for over three years. Moreover, there are objective differences between OMTs and the PSPP with regard to both the stated objective and technical details and the amounts at issue.

II. Legal framework

A. The FEU Treaty

5. The relevant provisions are laid down, in essence, in Title VIII of Part Three of the FEU Treaty, entitled ‘Economic and monetary policy’. Thus, under Article 119 TFEU:

‘1. For the purposes set out in Article 3 of the Treaty on European Union, the activities of the Member States and the Union shall include, as provided in the Treaties, the adoption of an economic policy which is based on the close coordination of Member States’ economic policies, on the internal market and on the definition of common objectives, and conducted in accordance with the principle of an open market economy with free competition.

2. Concurrently with the foregoing, and as provided in the Treaties and in accordance with the procedures set out therein, these activities shall include a single currency, the euro, and the definition and conduct of a single monetary policy and exchange-rate policy the primary objective of both of which shall be to maintain price stability and, without prejudice to this objective, to support the general economic policies in the Union, in accordance with the principle of an open market economy with free competition.

3. These activities of the Member States and the Union shall entail compliance with the following guiding principles: stable prices, sound public finances and monetary conditions and a sustainable balance of payments.’

6. Article 123(1) TFEU provides for the prohibition of monetary financing of the Member States as follows:

‘1. Overdraft facilities or any other type of credit facility with the European Central Bank or with the central banks of the Member States (hereinafter referred to as “national central banks”) in favour of Union institutions, bodies, offices or agencies, central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of Member States shall be prohibited, as shall the purchase directly from them by the European Central Bank or national central banks of debt instruments.’

7. The objectives and the basic tasks of the ECB are set out in Article 127 TFEU in the following terms:

‘1. The primary objective of the European System of Central Banks (hereinafter referred to as “the ESCB”) shall be to maintain price stability. Without prejudice to the objective of price stability, the ESCB shall support the general economic policies in the Union with a view to contributing to the achievement of the objectives of the Union as laid down in Article 3 of the Treaty on European Union. The ESCB shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Article 119.

2. The basic tasks to be carried out through the ESCB shall be:

– to define and implement the monetary policy of the Union,

– to conduct foreign-exchange operations consistent with the provisions of Article 219,

– to hold and manage the official foreign reserves of the Member States,

– to promote the smooth operation of payment systems.

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B. The Protocol on the ESCB and the ECB

8. The Protocol on the ESCB and the ECB sets out the instruments of monetary policy available to the ECB. Those instruments include open market and credit operations. They are set out as follows in Article 18.1 of the Protocol on the ESCB and the ECB:

‘18.1. In order to achieve the objectives of the ESCB and to carry out its tasks, the ECB and the national central banks...