This article examines the relationship between constitutional pluralism and authoritarianism. It does so since the Weiss decision of the FCC spurred unusual attacks on constitutional pluralism. This particular theoretical vision of European integration has been described as inherently dangerous and its abandonment has been called for out of chiefly instrumentalist reasons, in order to prevent constitutional pluralism turning into an autocrats’ refuge. The article argues this critique of constitutional pluralism does not succeed. Due to its truncated, exclusively positivist understanding of constitutional pluralism, it has failed to take into account pluralism’s normative core. The latter presents itself an antipode to authoritarianism, which means that the autocratic regimes simply cannot credibly avail themselves of the theory of constitutional pluralism to justify their authoritarian actions.

In response to the BVerfG’s PSPP judgment, the CJEU issued an unprecedented press release in which it claimed that national courts must give full effect to EU law because this is the only way to ensure the equality of the Member States. While the press release does not contain the word “primacy,” the obligation to give full effect to EU law clearly implies primacy of EU law. This article provides a constructive and critical analysis of the press release’s “equality argument.” First, it demonstrates how the CJEU most likely borrowed it from a recent article by Federico Fabbrini, and how the argument is virtually identical to Kelsen’s defense of international law primacy. Second, it criticizes the equality argument for being inconsistent with the CJEU’s case law, and shows how it is either wrong or tautological. After suggesting three possible reasons why the press release nonetheless justifies primacy in this way, the article concludes by showing how the CJEU’s case law is better conceptualized from a Hamiltonian perspective in which full effect is a goal rather than a means.

In this paper, I argue that the conflict between the German Federal Constitutional Court and the Court of Justice of the European Union is the story of a clash foretold, if one takes seriously constitutional courts as institutions designed to be “dogs that bite.” The German Court consistently developed a doctrinal tool to guide its role as guardian of the national constitutional order and the democratic principle, and enforced it when the constitutional control of monetary policy measures so required. I analyze the PSPP ruling, focusing on where the Court concluded that the lack of a satisfactory statement of reasons by the European Central Bank prevented it from reviewing the proportionality of the program. I argue that the Court, after conducting a substantive assessment, applied a weak remedy, thereby deferring the last word on the constitutionality of the PSPP to the political branches. In doing so, the Court opens space for the political assessment of a controversial monetary policy, enhancing the politicization of the Economic and Monetary Union, and provides a doctrinal toolbox for national constitutional courts that face competence creep of EU law in their jurisdictions. I conclude that, ultimately, the main merit of constitutional courts’ interventions in the EU integration is that they are in a privileged position to allow for the politicization of technocratic processes.

This article argues that the PSPP judgment effectively buries the era of financial liberalism, which has dominated the European economic constitution for decades. It raises the curtain on a new political paradigm, which I call “integrative liberalism”. Whereas the financial crisis put financial liberalism under strain, the development since then has been contradictory, torn between state intervention and market liberalism, focused above all on buying time rather than finding a new constitutional equilibrium. Now, together with the measures adopted in response to COVID-19, the PSPP judgment paves the way for profound change. Integrative liberalism is characterized by an overall shift from the market to the state, mitigating the post-crisis insistence on austerity and conditionality. Contrary to the embedded liberalism of the post-war era, integrative liberalism operates in a corrective and reactive mode with a focus on goals and principles, lacking the emphasis on long-term planning. Like every political paradigm, integrative liberalism ushers in a new understanding of the law. It puts the emphasis on context instead of discipline, and it elevates the proportionality principle. If integrative liberalism is to succeed, however, the democratic legitimacy of the Eurosystem and its independence require serious reconsideration.

The paper examines the possible opening of an infringement procedure against Germany as a result of the breaches that emerge from the declaration by the German Constitutional Court that the Court of Justice has acted ultra vires in the Weiss judgment (C-493/17). The proportionality assessment of the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), carried by the Court of Justice, is contested by the domestic court. We recall that the Commission enjoys great discretion regarding the launch of an infringement action based upon Article 258 of the TFEU and may be reluctant to use its powers, considering the special position of the constitutional courts in the context of Article 267 TFEU as well as the present situation of emergency following the pandemic. Yet, the possibility to start an infringement procedure for breaches of Treaty obligations resulting from an incorrect interpretation of domestic courts was admitted in case C-129/00 Commission v. Italy and applied in two subsequent cases (C-154/08 Commission v. Spain and C-416/17 Commission v. France). As a result of the ruling of May 5, 2020, the Court of Justice may find that Germany failed to fulfil obligations stemming from Article 267 TFEU and the related case-law, Article 19 TEU, as well as Article 5(2) TEU. Other breaches concern the independence of the ECB and of the Bundesbank (being it a Member of the European System of Central Banks (ESCB) and of the Eurosystem) as defined in Articles 130, 282(3) TFEU and Article 7 of the Protocol (No. 4) on the Statute of the ESCB and of the ECB. We argue in favour of the violation of all these provisions read in conjunction with the duty of loyal cooperation, laid down in Article 4(3) TEU. Yet, we conclude that it is uncertain whether the Commission will open (or continue) an infringement procedure against Germany since the Bundesbank may act to satisfy the requests of the German Constitutional Court in relation to the proportionality of the PSPP. It is to be hoped that the German State organs will make sure that the PSPP may be continued, thus ensuring the functioning of the Eurozone, despite the attack of the BVerfG to the EU Judicature and to Weiss ruling in particular.

The article explores the understandings of democracy underlying the judgment and its implications for the democratization of Europe. I read the judgement, critically, as impediment and, constructively, as impetus for the democratization of money and society. Firstly, I recount how the Federal Constitutional Court (FCC) through the construction of a “right to democracy” and the concepts of “ultra vires act” and “integration responsibility” asserted its jurisdiction over the limits of European integration. The court’s reasoning prompts me to understand the judgment not as a defense of democracy, but rather as an instance of upholding a “rule of law” that impedes the democratization of society. Secondly, I turn to the pronouncements on the demarcation of monetary from economic competences by the Court of Justice of the European Union (CJEU) and the FCC. I explain what I hold to be the weaknesses in the FCC’s critique of the CJEU from a doctrinal perspective. I then propose to read the PSPP judgment constructively as introducing a procedural requirement that may democratize monetary policy. Thirdly, I situate my reading of the judgment in the larger debate on the democratization of society and, more specifically, money.

A concern was voiced in commentaries after the PSPP judgment that the BVerfG’s position regarding the refusal to apply in Germany the CJEU judgment as issued on an ultra vires basis might be used in EU Member States infringing the rule of law, and the independence of the judiciary in particular. This issue is presented in relation to Poland. The article sets out the constitutional provisions which proclaim openness to European integration, as well as the union-friendly case-law of the Constitutional Tribunal (CT) until 2016. The CT jurisprudence at that time provided, however, for the possibility of refusing to apply EU law in exceptional situations, even though this never happened. Next, the article discusses endeavors of the new Polish authorities since the end of 2015 which drastically breach the rule of law in the field of the judiciary, as well as the measures taken by EU institutions to counteract these adverse phenomena. The Polish authorities argue that the competence to define the legal position of the judiciary has not been conferred on the Union and remains within the exclusive competence of the Member States. Such a stance was also taken by the politically dependent CT in April 2020. The PSPP judgment was therefore welcomed with joy by Polish politicians. There are major differences, however, between the rulings of the BVerfG and those of the Polish CT in its current composition, and the hopes pinned on the PSPP judgment by the Polish authorities are unfounded.