Table of Contents: I. Introduction. – II. The preliminary reference of the German Constitutional Court and the preliminary ruling of the Court of Justice. – III. Not ultra vires! The problematic reasoning of the German Constitutional Court. – III.1. The attempt to redefine the methods of interpretation of EU law: The misconstruction of the role of proportionality. – III.2. The attempt to redefine the methods of interpretation of EU law: The misconstruction of the intensity of the proportionality review. – III.3. Breaking the promise of exercising the ultra vires review in a cooperative and European friendly way. – IV. On the role of central banking and the relationship between economic and monetary policy. – IV.1. The applicable measure of judicial review over the policy measures of the European Central Bank. – IV.2. The existence of an overlap between monetary and economic policy and the role of the European Central Bank. – V. Concluding observations.
Abstract: In its famous PSPP judgment, the German Federal Constitutional Court activated for the first time its ultra vires doctrine and declared that both the Secondary Markets Public Sector Asset Purchase Programme of the European Central Bank and its interpretation by the CJEU violated the proportionality requirements by not examining in a comprehensive and substantiated manner the economic policy effects that its practical implementation inevitably entails. However, this judgment is based on a manifestly erroneous interpretation of the relationship between the principles of proportionality and conferral and constitutes a concealed attempt to redefine the methods of interpretation of EU law and to impose the traditional perception of the constitutional court about the role of central banking and the existence of an absolute and inviolable separation between monetary and economic policy. At the same time, the constitutional court breaks its promise to exercise its ultra vires review in a cooperative spirit and fails to exhaust the institutional means that were available to it in order to resolve the matter in a legally appropriate and amicable manner that would not essentially amount to a precarious attempt to adjudicate economics.
Keywords: German Federal Constitutional Court – Economic and Monetary Union – Secondary Markets Public Sector Asset Purchase Programme – ultra vires – proportionality – conferral.
* Teaching Associate, Athens University for Economics and Business, firstname.lastname@example.org.