EUROPÄISCHE KOMMISSION
GENERALSEKRETARIAT
Brüssel, den
SG-Greffe(JAHR)D/
STÄNDIGE VERTRETUNG DER
BUNDESREPUBLIK DEUTSCHLAND
BEI DER EUROPÄISCHEN UNION
Rue Jacques de Lalaing, 8-14
1040 BRUXELLES
BELGIQUE
MD 258 TFUE / andere Fälle als Nichtmitteilung
03
Betreff:
Aufforderungsschreiben – Vertragsverletzung Nr. [Nummer der
Vertragsverletzung einfügen]
Hiermit gestattet sich das Generalsekretariat, Sie zu bitten, beigefügtes Schreiben an den
Bundesminister des Auswärtigen weiterzuleiten.
Für den Generalsekretär,
Anlage: C(JAHR)…. Final
DE
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 2 299 11 11
http://ec.europa.eu/dgs/secretariat_general
E-mail: xxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx
link to page 2 link to page 2
EUROPÄISCHE KOMMISSION
Brüssel, den
[Nummer der Vertragsverletzung
einfügen]
C(JAHR)…. final
Dear Minister,
I would draw your attention to the judgment of the German Constitutional Court of 5
May 2020 concerning the joined constitutional complaints 2 BvR 859/15, 2 BvR
1651/15, 2 BvR 2006/15 and 2 BvR 980/16 (‘the judgment of the German Constitutional
Court’).
1
In point 3 of the operative part of that judgment, the German Constitutional Court held,
in substance, that the German federal government and the German Bundestag breached
the German Basic Law by failing to take suitable steps challenging that, with its Decision
(EU) 2015/774 of 4 March 2015 on a secondary markets public sector asset purchase
programme (Public Sector Asset Purchase Programme, ECB/2015/10, OJ L 121 of 14
May 2015, p. 20; ‘PSPP Decision’), as amended, the European Central Bank neither
assessed nor substantiated that the measures provided for in that decision, as amended,
satisfy the principle of proportionality.
The grounds of point 3 of the operative part of the judgment, which are binding on
German institutions pursuant to Article 31 of the Act on the Federal Constitutional
Court,
2 are found in the relevant sections on the effects of the findings of the German
Constitutional Court on German institutions (sections C.II.5 and C.II.6 of the judgment,
paragraphs 229 to 235). In turn, these sections are based on the German Constitutional
Court’s holding that the judgment of the Court of Justice (’Court of Justice’) of 11
December 2018 in Case C-493/17,
Weiss and others (EU:C:2018:1000) (‘the
Weiss
judgment of the Court of Justice’), is
ultra vires (section C.II.1.a of the judgment of the
1 DE:BVerfG:2020:rs20200505.2bvr085915, available at
http://www.bverfg.de/e/rs20200505_2bvr085915.html
2
Bundesverfassungsgerichtsgesetz (Federal Constitutional Court Act) as published on 11 August 1993
(Federal Law Gazette I p. 1473), as last amended by Article 2 of the Act of 8 October 2017 (Federal
Law Gazette I p. 3546).
Seiner Exzellenz Herrn Heiko MAAS
Bundesminister des Auswärtigen
Werderscher Markt 1
D - 10117 Berlin
Commission européenne, B-1049 Bruxelles – Belgique
Europese Commissie, B-1049 Brussel – België
Telefon: 00 32 (0) 2 299.11.11
link to page 3 link to page 3 link to page 3
German Constitutional Court, paragraphs 118 to 163), and that the PSPP decision is also
ultra vires (section C.II.1.b of that judgment, paragraphs 164 to 178).
Accordingly, in paragraph 163 of that judgment, the German Constitutional Court first
holds that the
Weiss judgment of the Court of Justice “
has no binding force in Germany”
(emphasis added by the Commission).
Secondly, in paragraph 178 of that judgment, the German Constitutional Court holds that
the PSPP Decision “
amount[s] to an ultra vires act”. In paragraph 235 of that judgment,
it holds: “
To the extent that the Federal Constitutional Court finds an act of institutions,
bodies, offices and agencies of the European Union to exceed the limits set by the
European integration agenda (Integrationsprogramm) in conjunction with Art. 23(1)
second sentence and Art. 20(2) first sentence GG, this ultra vires act does not partake in
the precedence of application of EU law (Anwendungsvorrang). As a result, the ultra
vires act is not to be applied in Germany, and has no binding effect in relation to
German constitutional organs, administrative authorities and courts.” (emphasis added
by the Commission).
After the judgement of the German Constitutional Court, the European Central Bank
adopted on 3 and 4 June 2020 certain decisions and subsequently released further
information regarding the PSPP. As a result, both the
Bundestag and the German
government, based on an analysis of the
Bundesbank, have confirmed that they consider
the PSPP to be in line with the principle of proportionality.
By applications lodged in August 2020, two applicants sought an order for the execution
of the
Weiss judgement. They took the view that the actions described in the previous
paragraph were insufficient to comply with the judgment of the German Constitutional
Court. Therefore, they sought an order of execution that would oblige the German
government and the
Bundestag to take action in order to ensure that the Bundesbank
refrains from further participating in the PSPP. The German Constitutional Court rejected
that request as inadmissible, or in the alternative unfounded, by order of 29 April 2021,
published on 18 May 2021.
It is standing case-law of the Court of Justice that as regards its obligations arising from
Union law, a Member State constitutes a single entity and is as such responsible under
Union law, irrespective of whether the relevant act is attributable to the legislature, the
judiciary or the executive.
3 As regards the judiciary, this is particularly important in order
to prevent the development of a line of national case-law that could be incompatible of
Union law.
4 Rather, the Union Treaties bind all organs of the State, including the
judiciary.
5
3 Cf. judgments in
Commission v
France, C-416/17, EU:C:2018:811, paragraphs 106 and 107; and in
Commission v
Spain, C-154/08, EU:C:2009:695, paragraphs 124 to 127;
see also judgment in
Köbler,
C-224/01, EU:C:2003:513, paragraph 32.
4 Cf. judgments in
Ferreira da Silva, C-160/14, EU:C:2015:565, paragraphs 36 to 45; in
Commission v
Spain, C-154/08, EU:C:2009:695, paragraphs 124 to 127; and in
Commission v
Italy, C-129/00,
EU:C:2003:656, paragraph 30 to 35.
5 See references in footnote 3 above.
2
In particular, the judgment of the German Constitutional Court raises serious issues in
regard of Union law. Consequently, the Commission services have entered into a
dialogue with the German authorities about these legal issues. Following that dialogue,
by letter of 23 February 2021, the German authorities took the view that these issues
should be addressed by an informal dialogue between the German Constitutional Court
and the Court of Justice with a view to exploring lines of “future judicial cooperation”,
including the possibility of a wider use of the reference procedure under Article 267
TFEU in future proceedings. Besides the fact that the suggestion made by the German
authorities has not been followed-up in practice, the proposed informal dialogue could
not repair the legal situation created by the judgement of the German Constitutional
Court insofar as the issues raised in this letter of formal notice are concerned.
In addition, following the order of 29 April 2021 of the German Constitutional Court,
published on 18 May 2021, the German authorities have informed the Commission
services that, in their opinion, the PSPP proceeding before the German Constitutional
Court is fully concluded without triggering any actual consequences and that the order is
an important and positive signal on the way forward and for upcoming procedures.
Nevertheless, the Commission considers that this development does not reverse the legal
situation created by the judgement of the German Constitutional Court insofar as the
issues raised in this letter of formal notice are concerned. The judgment of the Court of
Justice and the grounds on which it is based continue to be deprived, in Germany, of the
legal effects granted by virtue of the Union Treaties. The same applies to the original
PSPP Decision. The developments after the judgement of the German Constitutional
Court have avoided an actual disruption of the implementation of the PSPP Decision by
virtue of acts taken by German authorities, in the light of the monetary policy decisions
of the European Central Bank of 3 and 4 April 2021. However, the breaches set out in
this letter of formal notice remain unaffected by those developments.
The present letter of formal notice concerns the general principles of autonomy, primacy,
effectiveness, and uniform application of Union law, and those relating to Article 267
TFEU (preliminary rulings procedure) and Article 4(3) TEU (principle of sincere
cooperation. Without disregarding those fundamental structural principles of Union law,
the German Constitutional Court could not have found that the PSPP decision was ultra
vires.
First account: General principles of autonomy, primacy, effectiveness and uniform
application of Union law.
According to settled case-law of the Court of Justice, Union law is an autonomous legal
order with respect both to the law of the Member States and to international law.
Autonomy of Union law is justified by the essential characteristics of the Union and its
law, relating in particular to the constitutional structure of the EU and the very nature of
that law. Union law is characterised by the fact that it stems from an independent source
of law, the Union Treaties, by its primacy over the laws of the Member States, and by the
direct effect of a whole series of its provisions which are applicable to their nationals and
to the Member States themselves. Those characteristics have given rise to a structured
3
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network of principles, rules and mutually interdependent legal relations binding the
Union and its Member States reciprocally and binding its Member States to each other.
6
Union law is thus based on the fundamental premiss that each Member State shares with
all the other Member States, and recognises that they share with it, a set of common
values on which the Union is founded, as stated in Article 2 TEU. That premiss implies
and justifies the existence of mutual trust between the Member States that those values
will be recognised, and therefore that the law of the EU that implements them will be
respected. It is precisely in that context that the Member States are obliged, by reason
inter alia of the principle of sincere cooperation set out in the first subparagraph of
Article 4(3) TEU, to ensure in their respective territories the application of and respect
for Union law, and to take for those purposes any appropriate measure, whether general
or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting
from the acts of the institutions of the Union.
7
It is furthermore settled case-law that, by virtue of the principle of primacy of Union law,
which is an essential feature of the Union legal order,
8 “the law stemming from the treaty,
an independent source of law, could not, because of its special and original nature, be
overridden by domestic legal provisions, however framed, without being deprived of its
character as [Union] law and without the legal basis of the [Union] itself being called into
question”.
9 In consequence, rules of national law, even of a constitutional order, cannot
be allowed to undermine the effectiveness of Union law on the territory of that State.
In order to ensure that the specific characteristics and the autonomy of the Union legal
order are preserved, the Treaties have established a judicial system intended to ensure
consistency and uniformity in the interpretation of Union law.
10
Finally, it is settled case-law that national courts do not have the power to declare acts of
the Union institutions invalid. The main purpose of the jurisdiction conferred on the
Court by Article 267 TFEU is to ensure that Union law is applied uniformly by national
courts. That requirement of uniformity is particularly vital where the validity of a Union
act is in question. Differences between courts of the Member States as to the validity of
Union acts would be liable to jeopardise the very unity of the Union legal order and
6 Judgment in
Achmea, C-284/16, EU:C:2018:158, paragraph 33; see, to that effect, also Opinion 2/13
(Accession of the EU to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraphs 165 to 167
and the case-law cited.
7 Judgment in
Achmea, C-284/16, EU:C:2018:158, paragraph 34; Opinion 2/13 (Accession of the EU to
the ECHR) of 18 December 2014, EU:C:2014:2454, paragraphs 168 and 173 and the case-law cited.
8 Opinion 1/91 (EEA Agreement I), EU:C:1991:490, paragraph 21, and Opinion 1/09 (Agreement
creating a unified patent litigation system), EU:C:2011:123, paragraph 65.
9 Judgments in
Costa/ENEL, 6/64, EU:C:1964:66, page 1145 ;
Internationale Handelsgesellschaft,
11/70, EU:C:1970:114, paragraph 3;
Dow Chemical Ibérica/Commission, 97/87, 98/87 and 99/87,
EU:C:1989:380, paragraph 38,
Winner Wetten, C-409/06, EU:C:2010:503, paragraph 61 and
Melloni,
C-399/11, EU:C:2013:107, paragraph 59.
10 Judgment in
Achmea, C-284/16, EU:C:2018:158, paragraph 35; Opinion 2/13 (Accession of the EU to
the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 174
4
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undermine the fundamental requirement of legal certainty.
11 The Court of Justice alone
therefore has jurisdiction to declare a Union act invalid.
12
For the Commission, the judgment of the German Constitutional Court is incompatible
with the fundamental principle of autonomy of the Union legal order. The German
Constitutional Court first declares that the
Weiss judgment of the Court of Justice is
ultra
vires and has no binding effect in Germany. After doing so, it sets out its own
interpretation of Union law and assesses the legality of the PSPP Decision on the basis of
that own interpretation, declaring it
ultra vires as well.
13 In relation to the judgment of
the Court of Justice and to the PSPP decision, the German Constitutional Court thus
disregards the autonomy of the Union legal order, subjecting it to an external judicial
review, and putting in question the mutual trust between the Member States that the law
of the Union will be respected.
In the same way, the judgment of the German Constitutional Court appears incompatible
with the principle of primacy of Union law and jeopardises the effectiveness of Union
law in Germany. Indeed, the German Constitutional Court explicitly holds that the PSPP
Decision “
does not partake in the precedence of application of EU law” and “
has no
binding effect in relation to German constitutional organs, administrative authorities and
courts”. In that context, the German Constitutional Court applies rules of its national
legal order in a way that also puts in question the effectiveness of Union law in Germany.
By doing so, the judgment of the German Constitutional Court also sets aside the
authoritative and final interpretation of Union law by the Court of Justice, which is a
particular expression of the primacy of Union law, and is essential for the consistency
and uniformity of interpretation and application of Union law.
Finally, the judgment of the German Constitutional Court puts in question the exclusive
competence of the Court of Justice to declare acts of Union law invalid. Indeed, while not
formally declaring the PSPP Decision invalid, the judgment of the German Constitutional
Court subjects the continued binding force of the PSPP Decision in Germany to the
condition that within three months, “
the ECB Governing Council adopts a new decision
that demonstrates in a comprehensible and substantiated manner that the monetary
policy objectives pursued by the ECB are not disproportionate to the economic and fiscal
policy effects resulting from the programme”.
14 This finding does not appear to have a
mere preliminary character as is demonstrated by the fact that, to come to that finding, the
German Constitutional Court definitively declares ultra vires the
Weiss judgment of the
Court of Justice. By doing so, the German Constitutional Court has created a legal
situation equivalent to that which the case-law of the Court of Justice seeks to avoid and
has taken a decision that runs counter the PSPP Decision.
11 Judgments in
Foto-Frost, 314/85, EU:C:1987:452, paragraphs 15 and 20;
IATA, C-344/04,
EU:C:2006:10, paragraph 27 and
OTIS, C-199/11, EU:C:2012:684, paragraphs 53 and 54.
12 Judgments in
Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest, C-143/88 and C-92/89,
EU:C:1991:65, paragraph 17; and in
Greenpeace France and Others, C-6/99, EU:C:2000:148,
paragraph 54.
13 Judgment of the German Constitutional Court, paragraphs 168 to 179.
14 Judgment of the German Constitutional Court, paragraph 235.
5
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An informal dialogue between the German Constitutional Court and the Court of Justice
with a view to exploring lines of “future judicial cooperation”, as suggested in the
abovementioned letter of 23 February 2021, could not alter this conclusion. Indeed, the
persisting violation of fundamental principles of EU law created by the judgement of the
German Constitutional Court would remain unaddressed by such an informal dialogue.
Second account: The binding force of judgments handed down pursuant to Article
267 TFEU and of the duty of loyal cooperation pursuant to Article 4(3) TEU
In accordance with Article 19 TEU, it is for the national courts and tribunals and the
Court of Justice to ensure the full application of Union law in all Member States and to
ensure judicial protection of the rights of individuals under that law.
15
In particular, the judicial system as thus conceived has as its keystone the preliminary
ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue
between one court and another, specifically between the Court of Justice and the courts
and tribunals of the Member States, has the object of securing uniform interpretation of
Union law, thereby serving to ensure its consistency, its full effect and its autonomy as
well as, ultimately, the particular nature of the law established by the Treaties.
16
Consequently, under the judicial system of the Union Treaties, a judgment in which the
Court of Justice gives a preliminary ruling on the interpretation or validity of an act of a
Union institution conclusively determines a question or questions of Union law and is
binding on the national court for the purposes of the decision to be given by it in the main
proceedings.
17
By holding that the
Weiss judgment of the Court of Justice has “
no binding force in
Germany”,
18 the judgment disrespects a final and binding judgment of the Court of
Justice.
The Commission takes the view that any differences of view between a referring national
court and the Court of Justice have to be resolved through dialogue in the preliminary
rulings procedure, which can be, if needed, an iterative process (or “repeated
dialogue”).
19 In accordance with settled case law, the authority of a preliminary ruling
does not preclude the national court to which it is addressed from properly taking the
view that it is necessary to make a further reference to the Court of Justice before giving
judgment in the main proceedings. According to the case law, such a procedure may be
15 Judgment in
Achmea, C-284/16, EU:C:2018:158, paragraph 36; Opinion 1/09 (Agreement creating a
unified patent litigation system), EU:C:2011:123, paragraph 68; Opinion 2/13 (Accession of the Union
to the ECHR), EU:C:2014:2454, paragraph 175; and Judgment in
Associação Sindical dos Juízes
Portugueses, C-64/16, EU:C:2018:117, paragraph 33.
16 Judgment in
Achmea, C-284/16, EU:C:2018:158, paragraph 37; Opinion 2/13 (Accession of the EU to
the ECHR), EU:C:2014:2454, paragraph 176 and the case-law cited.
17 Judgments in
Benedetti, 52/76, EU:C:1977:16, paragraph 26, in
Fazenda Pública, C-446/98,
EU:C:2000:691, paragraph 49, and in
Gauweiler, C-62/14, EU:C:2015:400, paragraph 16, and order in
Wünsche, 69/85, EU:C:1986:104, paragraph 13.
18 Judgment of the German Constitutional Court, paragraph 163.
19 See, for example, judgment in
M.A.S. and M.B., C-42/17, EU:C:2017:936.
6
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justified when the national court encounters difficulties in understanding or applying the
judgment, when it refers a fresh question of law to the Court, or again when it submits
new considerations which might lead the Court to give a different answer to a question
submitted earlier.
20 The obligation to continue judicial dialogue and refer again follows
from Article 267 TFEU, interpreted in the light of the principle of sincere cooperation
enshrined in Article 4(3) TEU. An informal dialogue between the German Constitutional
Court and the Court of Justice with a view to exploring lines of “future judicial
cooperation”, as suggested in the abovementioned letter of 23 February 2021, could not
alter or even replace the mechanism of judicial dialogue established by the Treaties.
Consequently, due to the fact that the German Constitutional Court found that the Weiss
judgment of the Court of Justice had no binding force in Germany, the Commission
considers that Germany has failed to comply with Article 267 TFEU, because judgments
rendered pursuant to this provision are binding and final. In addition, since the German
Constitutional Court declared the judgment of the Court of Justice ultra vires instead of
referring the matter again to the Court of Justice in view of the difficulties it had with the
judgment of the Court of Justice, Germany has also disregarded its obligations under
Article 267 TFEU, interpreted in the light of the principle of sincere cooperation set out
in Article 4(3) TEU.
Conclusion
The European Commission consequently takes the view that Germany has failed to fulfil
its obligations under the general principles of autonomy, primacy, effectiveness and
uniform application of Union law, and under Article 267 TFEU, interpreted in the light of
the principle of sincere cooperation set out in Article 4(3) TEU.
The Commission invites your Government, in accordance with Article 258 of the Treaty
on the Functioning of the European Union, to submit its observations on the foregoing
within two months of receipt of this letter.
After examining these observations, or if no observations have been submitted within the
prescribed time-limit, the Commission may, if appropriate, issue a Reasoned Opinion as
provided for in the same Article.
Yours faithfully,
For the Commission
Ursula von der Leyen
President of the Commission
20 Judgment in
Pretore di Salò, 14/86, EU:C:1987:275, paragraph 12, and order in
Wünsche, 69/85,
EU:C:1986:104, paragraph 15. In the same paragraph, the Court adds:
“However, it is not permissible
to use the right to refer further questions to the Court as a means of contesting the validity of the
judgment delivered previously, as this would call in question the allocation of jurisdiction as between
national courts and the Court of Justice under Article 177 of the Treaty [Article 267 TFEU]”.
7