Dhe President of the European Court of Justice has compared his institution to the American Supreme Court. That is a politically legitimate vision, but it does not characterize the state of Europe. Even after decades of success – the ECJ is currently celebrating its 70th birthday – the European Union is not a federal state.
You don’t have to look far for the reason. The Member States do not want that. They have created a supranational entity of their own kind, for which they share their power and delegate authority in certain areas. The problem is that the organs of the EU see every problem as a European one and want to regulate it – even if that goes beyond the treaties or if the member states are actually responsible.
The European Court of Justice, too, is working diligently on the constitutionalization of Europe as a state, as is quite openly said in Luxembourg. But that is against the contract and undemocratic – and it can also be expensive in other ways.
An example of this is not only the behavior of the largely uncontrolled European Central Bank, which has already led to a one-off but foreseeable break with the Federal Constitutional Court. It is also generally about an unlimited policy, as is now the case with the so-called own resources decision to finance the “Next Generation EU”.
The name says it all – and is typical. A huge fund has been set up to deal with the corona pandemic. The Commission is authorized to borrow up to 750 billion euros. The Bundestag approved this. Aid in the spirit of solidarity is now contractually possible in the event of extraordinary events. But funds for climate protection, for example, which are generously provided under this program, have hardly anything to do with Corona.
What is happening here is what is also well known at national level: Despite strict commitments to specific purposes, the cornucopia is poured out. However, while the constitutional courts can intervene in the member states, there is largely no control in Europe. Of course, if the end justifies the means, then in a contractually based association of states that does not want to be a debt union, another authority must pay attention to the jointly agreed competencies – and thus to democracy, the rule of law and closeness to the people.
For Germany, this is the Federal Constitutional Court. And the Second Senate also sees “weighty concerns” about the EU’s own resources decision. The Bundestag is obliged to continuously monitor the use of the funds from the reconstruction fund and the liability risk. The German parliament must protect the federal budget.
Here, however, the Karlsruhe judges do not yet see any obvious violation of the European treaties; the constitutional identity of the Basic Law is also not affected. Therefore there was no reason for a referral to the European Court of Justice.
The guard function
You can see it differently. In any case, the integration-friendly Karlsruhe case law is evident here: not only is the fundamental priority of European law recognised, but Community law must also be interpreted in a Europe-friendly manner.
However, it is still clear that the guardianship of the jointly enacted law cannot be left to the European Court of Justice alone. That remains important, even if there is a risk that it will be misunderstood in Poland, for example. Because those who want the European Union to become the United States of Europe one day can achieve this with the citizens. The European Court of Justice also sees deficits here; and it is no coincidence that the Federal Constitutional Court – with all its shortcomings, which are also due to its power and popularity – is considered a citizens’ court.
Nothing can be taken for granted, the democratic constitutional state in Europe has to assert itself anew every day; this is especially true in these challenging times. Especially since the Federal Constitutional Court itself is going through a far-reaching personnel upheaval. It is unclear whether the Karlsruhe line, which was also a model for other constitutional courts. by others, will continue to be held out. Constitutional judge Peter Müller is already accusing the Senate majority of not doing enough to protect democracy. And even if the supposedly Europe-friendly science is up in arms (which, unlike the judiciary, does not decide the fate of people): Europe can only thrive from below, self-determined, in diversity and under the rule of law.