Table of Contents: I. “More Europe” – a better Europe? The state of the Union after the Gauweiler Judgment. – II. The road to the crisis and the ambivalences of unconventional rescue operations. – III. Necessity knows no laws: entrapment in a state of emergency?
Abstract: The European integration project is in troubled waters. All branches of European studies document its difficulties, explore the reasons and discuss the potential to cure its failings. Diagnoses, of course, differ widely both across and beyond the Eurozone and the European Union, and, unsurprisingly, these debates are not immune to distorted perceptions and wrongful ascriptions. The title of this comment points to a schism which is not new, but which seems to be deepening. The schism mirrors the discrepancies in the various disciplines concerned with the integration process. Thanks to the re-opening of the OMT-litigation in Karlsruhe, we know at least that the CJEU did not have the last word. But the Luxembourg Court may well have had the final say; it is as unlikely as ever that Karlsruhe will shoulder the responsibility for the destruction of the common currency. What we can observe is a strengthening of European powers. We have learned to understand any move towards more Europe as a signal of progress. But the kind of transformation to which we are now exposed has been generated by a crisis of enormous dimensions whose end is not in sight. As a lawyer, I would substantiate: this crisis attests to nothing less and nothing better than the inability of European politics to remain faithful to the commitment to the project of a democratic mode of European governance, to the respect of human and social rights, and to a law-mediated legitimacy of the integration project. This is a discomforting reading of the state of the Union. Judicial self-restraint could become a cure only if the judiciary both intended to and were able to help to initiate responsible political deliberation about a re-construction of Europe's legitimacy. For the time being, we have to conclude, sadly, that Europe is without a guardian of its constitutionalism.
Keywords: OMT litigation - Economic and Monetary Union - European Central Bank - Gauweiler - Eurozone.