Table of Contents: I. Introduction: when European and constitutional law collide. – II. Constitutional pluralism and the idea of an appeal court. – III. From Karlsruhe to Luxembourg and back: OMT and PSPP. – IV. The many faces of proportionality. – V. Proportionality in the PSPP decision of the FCC. – VI. Discussion. – VII. Conclusion: a way out of constitutional pluralism?
Abstract: In May 2020, for the first time in its history, the Federal Constitutional Court (FCC) of Germany declared Union acts as being ultra vires. According to the FCC, the European Central Bank (ECB) and the Court of Justice of the European Union (CJEU) had acted beyond their mandates because they did not apply strong proportionality standards to the ECB’s Public Sector Purchase Programme (PSPP). The resulting stalemate within constitutional pluralism has revived the discussions about loyalism within constitutional pluralism and about the possible introduction of an appeal court with the “final say” over constitutional conflict. This Article shows that, contrary to the assessment of some critics, the controversial ruling of the Federal Constitutional Court was within the bounds of loyal behavior within constitutional pluralism. As the analysis of the PSPP conflict also shows, a European super-judicial authority would reach its limits the more we move from the surface to the core of the struggles between European and national constitutional law. The different readings of proportionality are difficult to bridge, and the mutually exclusive claims about the nature of the supremacy of European law are not accessible to compromise at all. We should therefore not expect too much from an appeal court, if it were introduced.
Keywords: constitutional pluralism – supremacy – proportionality – European Central Bank – PSPP – Weiss.
* Head of the Research Group on the Political Economy of European Integration, Max Planck Institute for the Study of Societies, firstname.lastname@example.org.