The Ideological Blinkers of Karlsruhe

It was genuine pandemonium. The judgment on 5 May by the German Constitutional Court (Bundesverfassungsgericht or BVerfG) killed three pigeons with one stone. It ruled illegal the quantitative easing pursued by the European Central Bank (ECB), starting from 2015, with the Public Sector Purchase Programme (PSPP), casting a shadow over its current anti-pandemic programme. It judged as “ultra vires” (i.e. beyond its powers) the 2018 judgment of the European Court of Justice (ECJ), which had considered the PSPP as compatible with the ECB’s mandate. It criticised the German Government and the Bundestag (the lower house of parliament) for not defending the interests of Germany’s savers, banks and insurance companies, who, for years, had accused Mario Draghi of damaging them by cutting interest rates to zero (to the benefit of debtor countries such as Italy). This pandemonium was not, however, created by chance. That judgment radicalises the political vision of European integration which the BVerfG has been asserting for years. While for the ECJ (since the Van Gend en Loos judgment in 1963) European integration “created a new legal order” of a supranational type, for the BVerfG an integrated Europe continues to undoubtedly be an interstate organisation. Let us have a closer look at this BVerfG’s political view.

Since the early 1990s, the BVerfG has used its judgments to systematically and continuously fight the supranational vision of the European Union (EU). In a singular coincidence with the unification of Germany in October 1990, the BVerfG developed a radical critique of supranationalism, since (in its judgment) it is bereft of democratic legitimacy. For the BVerfG, the EU cannot be vested with independent powers because it is not based on a (single and homogeneous) European ‘people’ which may legitimate the use of such powers. For the BVerfG, the EU is an organisation which derives from the will of the national states which set it up. The latter are “the masters of the Treaties” and their democratic bodies (parliaments, governments, and courts) must have control over the decisions which are taken at European level. In the 1993 judgment on the Maastricht Treaty (Maastricht-Urteil), the BVerfG clarifies that “the Bundestag must maintain duties and powers of significant weight (since) the European Parliament only has a support role in providing legitimatisation (to the EU)”. In the 2009 judgment on the Lisbon Treaty (Lissabon-Urteil), the BVerfG criticises the Treaty because it did not recognise to the German Parliament “sufficient rights of participation in European legislative procedures and in those to amend the Treaty itself”. The adoption of the criterion of ‘degressive proportionality’ for the composition of the European Parliament has made the latter even less democratic. That criterion, since it over-represents small states compared to the large states, penalises German voters (who however elect the highest number of MEPs). The 2012 judgment on the Fiscal Compact and the European Stability Mechanism and the 2014 judgment on the Outright Monetary Transaction (OMT) enhance the same principle, in other words they are constitutional only to the extent they guarantee the Bundestag the possibility of exercising full control over spending decisions.

The BVerfG’s political vision brings together both the statist and constitutionalist theories of the German tradition. The constitutional state (according to Paul Kirchhof, the architect of the Maastricht-Urteil judgment) is the essential condition to maintain democracy and to defend the identity of its people. Given Germany’s history, it is a fine thing that the BVerfG vigorously defends constitutional principles. However, in that defence, there is a political idea which shapes up as a genuine ideology. There is the idea that without a homogenous ‘people’ there cannot be democracy, with the consequence that the latter can only prosper in the constitutional national state. This idea lacks empirical evidence, even if it reflects the specific German situation. In other European countries (such as France and the United Kingdom), the people historically derive from the state, they are not a prerequisite for it. But above all in unions of states that have become federal (such as the United States and Switzerland), democracy has been built in the absence of a homogenous people and a centralised state. If, as the BVerfG argues, democracy can only exist in the national state, then the EU’s supranational institutions can only act if they are controlled by national institutions. Thus, following the BVerfG’s rationale, the ECB is no more than a system of central banks, the ECJ one of the courts of European constitutional pluralism, the Commission a collection of national commissioners, the European Parliament an expression of national electorates. In this political framework, the single market itself is destined to be called into question, given that it cannot exist without the independence of supranational institutions (such as the ECJ and the Commission). Are those who want to mediate the demands of the BVerfG to be able to nullify the decisions of the supranational bodies, aware of this?

In short, with the judgment of 5 May, the BVerfG has taken a great stride forward in asserting its political vision. An interstate, not sovereigntist, vision, even if it can be used by governments such as those in Poland and Hungary. The BVerfG has become a so powerful domestic opposition to supranationalism that it has driven post-Cold War German governments towards an intergovernmental interpretation of European integration. The BVerfG is stuck on ideological positions which prevent it from understanding the substantial difference between the German situation and European integration. It is so taken by the rhetoric of its own arguments that it does not even consider the problem of their consequences. Also John Caldwell Calhoun (1782 – 1850), the American politician who, more than anyone else, elaborated the theory of States’ Rights, was pleased by the rhetoric of his arguments. That theory, by which America was a union of sovereign states which had the power to nullify the measures of the federal government, made no small contribution to creating the conditions for the Civil War that exploded ten years after his death. It would be necessary, for the Commission, to open an infringement procedure against the BVerfG for not respecting the Treaty. However, it would be even more necessary that German politics finds a way for taking the Karlsruhe blinkers off.

Sergio Fabbrini is Professor of Political Science and Dean of the Political Science Department at the LUISS University in Rome and Pierre Keller Visiting Professor at the Harvard Kennedy School of Government.