German Federal Constitutional Court Ruling in 2020 for the European Union’s Legal Order

Chapter 1 - Introduction

1.1 EU Legal Order

In 1964, the landmark Costa v ENEL case marked a pivotal moment for the European Union (hereinafter ‘EU’), affirming its distinct legal order, separate from international law. This ruling effectively established the EU as a source of law in its own right. The EU legal order encompasses a comprehensive system of laws and regulations that govern the Member States and their interactions.[1] Within this legal framework, various instruments shape EU law, including treaties, directives, regulations, and case law from the Court of Justice of the European Union.[2] These instruments serve as means to apply and enforce EU law across Member States. Importantly, the EU legal order asserts its supremacy over national laws within areas where the EU holds competence, ensuring consistency, effectiveness, and coherence in the functioning of the EU.[3] As a result, EU law exerts direct or indirect influence on the legal systems of Member States, becoming an integral part of their legal landscape.[4] The EU legal order is structured into primary law, comprising treaties and legal principles, and secondary legislation, which derives from provisions outlined in the treaties.[5] This legal framework empowers the EU to exercise its authority as a supranational organization, establishing its own legal identity and order.[6] However, challenges arise when national laws conflict with EU law, as the EU legal order dictates supremacy in such instances. Analyzing cases where this principle was contested provides insights into the implications of such conflicts on the EU legal system and its Member States.

1.2 Relevance

This paper explores the German Federal Constitutional Court’s (hereinafter ‘FCC’) ruling from 2020 with a focus on its implications on the EU legal order. The exploration of this ruling is particularly relevant, given recent tensions between Member States and the EU in the last years since its issuance. In its ruling the FCC declared a ruling from the Court of Justice of the European Union (hereinafter ‘CJEU’) to be ultra vires and thereby not applicable in Germany.[7] Thereby, the FCC has openly defied the EU’s doctrine of supremacy, which led to a lot of uproar from the Commission, as well as from scholars and academics. The principle of supremacy serves as a foundational element in the European Union, governing the relationship between EU law and the national laws of its Member States. It ensures a consistent application and interpretation of EU laws across all Member States, stipulating that EU law takes precedence over national laws.[8] Established by CJEU case-law, the supremacy doctrine asserts that, in case of a conflict between domestic law and EU law, national courts must apply EU law to resolve the conflict.[9] This commonly occurs in court disputes or when authorities must make decisions within the scope of EU law. Failure to comply with these obligations by Member States results in sanctions under EU law, including fines or penalties, however this did not stop the German Federal Constitutional Court from breaching the doctrine.

Despite being introduced by the CJEU over thirty years ago, the doctrine of supremacy remains a point of disagreement between the EU and its Member States. Therefore, it is highly relevant to look at the implications of the ruling and whether a legal precedent has been set, which could shape future rulings in all of the EU or whether there are other effects or consequences from the ruling. Furthermore, the ruling raises questions about the application of EU principles, such as EU supremacy. As the highest court in Germany for constitutional matters, the FCC's decision carries significant weight within the German legal system and could have broader implications for the German legal order. Lastly, its ruling may not only have implications solely in Germany, but the FCC’s decision can have broader implications beyond Germany in the context of EU law, given Germany’s influential role within the EU, which has ‘arguably become Europe's economic and political powerhouse’.[10]

1.3. Article Statement

This article examines the implications of the German Federal Constitutional Court's ruling in the Public Sector Purchase Programme case on the European Union legal order, arguing that it has intensified discussions regarding national sovereignty, constitutional pluralism, and the establishment of legal precedents within the EU. The article will be structured into six chapters to provide a comprehensive analysis. Chapter Two will introduce the rulings of the German Federal Constitutional Court and outline their key arguments, supplemented by background information on the cases. In Chapter Three, the discussion will focus on whether the FCC's rulings might have established a legal precedent for other Member States. Chapter Four will delve into the concept of constitutional pluralism and examine how the FCC rulings reflect this principle. Chapter Five will explore the dynamics between Member States and the EU, particularly regarding issues of EU autonomy versus national sovereignty. Finally, Chapter Six will offer a conclusion summarizing the overall implications of the FCC rulings on the EU legal framework.

1.4. Methodology

The aim of this article is to examine the implications of the FCC ruling on the EU legal order. To do so, the research employs a doctrinal methodology, including case study analysis as well as other legal primary sources and a comprehensive literature review from academics and scholars. The case study analysis will focus on the cases 2 BvR 859/15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15, and Case 493/17 Weiss & others [2018] ECR - I 26, while the secondary sources include legal commentaries from academics. The analysis will follow a legal approach through the use of case-by-case analysis and a descriptive analysis of secondary sources in relation to the topics of EU supremacy, legal precedent, constitutional pluralism and sovereignty. The purpose of this analysis is to determine what the implications of the FCC ruling are and how they mayA impact the EU legal framework. Henceforth, the FCC ruling will be examined in terms of having potentially created a legal precedent as well as restarting discussions regarding national sovereignty versus EU autonomy and also the discussion of constitutional pluralism. Through the analysis of the FCC’s ruling, the research delves into the implications that it may have had, while the literature reviews place them within the theoretical and contextual framework of EU law.

Chapter 2: Challenging Supremacy: The FCC Ruling

2.1. The PSPP Controversy: The FCC's Verdict on ECB's Monetary Policy

The Public Sector Purchase Programme (hereinafter ‘PSPP’) was established by the European Central Bank (hereinafter ‘ECB’) with the primary goal of stimulating economic activity. Launched on March 4th, 2015, the PSPP served as a monetary policy initiative designed to combat deflationary pressures, foster economic growth, and enhance stability within the eurozone economy.[11] Under this initiative, the ECB was authorized to purchase government bonds from Member States as well as public sector bonds from international organizations or agencies.

The Eurozone encompasses all EU Member States that utilize the euro as their national currency and currently comprises 20 countries that have adopted the euro since its introduction in 2002.[12] Through the PSPP, the ECB functioned as an investor, purchasing bonds from national governments of Member States.[13] This involved lending money to governments in exchange for periodic interest payments and receiving the total remuneration back at the maturity date, as specified in the contract. The ECB aimed to influence economic conditions by manipulating demand for bonds, thereby impacting bond yields.[14] With increased demand for bonds, bond yields decreased, resulting in lower interest payments. This, in turn, incentivizes borrowing and investment, positively stimulating the economy.[15] According to the ECB, this phenomenon occurs because fixed interest payments represent a smaller percentage of the bond's higher price, leading to a lower yield. Moreover, the PSPP was introduced by the ECB to ensure accountability and transparency in its bond-buying activities. By communicating its objective of influencing fiscal policy to stimulate the economy, the ECB aimed to maintain transparency and be held accountable for adhering to specific guidelines.[16] Additionally, the program underscored the ECB's efforts to communicate its policies and objectives effectively to the financial markets.[17]

In 2017, German economists objected to the PSPP in Case 493/17 Weiss & others, arguing it exceeded ECB's competences and violated the prohibition of monetary public sector financing.[18] However, the CJEU ruled in 2018 that the ECB had not breached its competences, yet the German Federal Constitutional Court found merit in these objections, sparking a legal dispute.[19] In 2020, the FCC ruled that the ECB’s Public Sector Purchase Programme violated the principle of proportionality and exceeded the ECB's mandate.[20] The FCC asserted that the proportionality assessment used to determine the encroachment of competences was flawed, leading to concerns about the ECB overstepping its authority.[21] The FCC's final characterization of the CJEU's decision as ‘ultra vires’ and not applicable in Germany directly challenged the doctrine of supremacy of the EU, effectively denying the EU of its supreme authority.[22] This ruling sparked further uproar and unleashed various discussions among scholars. Therefore, it is important to examine the implications of this ruling for the future of the EU legal framework.

Subsequently, the FCC directed its decision to the German Federal Government, specifying that the German Bundesbank’s participation in the PSPP would be contingent upon the fulfillment of a requirement by the ECB - a substantiated proportionality assessment to be conducted three months after the CJEU decision.[23] This decision by the FCC prompted a press statement from the CJEU, underscoring the continued tension between national legal interpretations and the CJEU’s assertion of the primacy of EU law.[24] The statement further emphasized the CJEU’s exclusive authority on the validity of acts, triggering an infringement proceeding against Germany.[25] The EU Commission’s President, Ursula von der Leyen, reaffirmed the primacy of EU law over national law and the binding nature of court decisions for all Member States.[26] The Weiss case stands as a fundamental illustration of a Member State challenging the EU’s supremacy doctrine and opting to operate outside its confines.

2.1. The FCC Ruling: Proportionality

After having received the preliminary request from the FCC regarding Case 493/17 Weiss & others, the CJEU meticulously delved into the FCC’s concerns regarding proportionality, a fundamental principle guiding the actions of EU institutions.[27] The principle dictates that ‘acts of the EU institutions should be suitable for attaining the legitimate objectives pursued by the legislation at issue and should not go beyond what is necessary to achieve those objectives’.[28] According to the Court's interpretation of Articles 119(2) and 127(1) TFEU, articles that primarily discuss economic policy coordination within the EU, such as monetary policy and price stability, any bond-buying program under monetary policy must strictly adhere to the principle of proportionality, also found under Art. 5(4) TEU.[29]

To the surprise of the FCC, the CJEU argued that the PSPP was both suitable and necessary. Firstly, it effectively addressed the risk of deflation and persistent low inflation, crucial for maintaining price stability, hence underlining the PSPP’s suitability.[30] Secondly, the CJEU underscored the program's necessity in achieving economic stability without exceeding the ECB's competence.[31] The CJEU held that the PSPP’s setup ensured its effects were limited to achieving the intended objective, with its impact spread uniformly across the entire euro area, thereby avoiding favoritism towards specific Member States.[32] Therefore, the CJEU determined that the ECB fulfilled the principle of proportionality.

However, dissatisfaction with the Court’s decision led the FCC to argue that ‘the PSPP constitutes an ultra vires act, given the ECB’s failure to substantiate that the programme is proportionate’.[33] According to the FCC, the growing council decision 2015/774 and its subsequent amendments (Decisions 2015/2101, 2015/2464, 2016/702 and 2017/100) must be ultra vires. [34] The FCC argued that the CJEU overlooked the comprehensive economic policy effects of the PSPP and failed to balance conflicting interests, essential in upholding the principle of proportionality.[35] Despite acknowledging the PSPP's monetary policy objective as acceptable, the FCC criticized the ECB for pursuing it without addressing its broader economic policy implications, thus violating proportionality principles and constituting an ultra vires act.[36] The FCC reiterated the importance of adhering to proportionality, expressing doubts about the PSPP's suitability due to persistently low interest rates post-implementation, ultimately concluding that the ECB's actions contravened the proportionality principle outlined in Article 5(1) and Article 5(4) TEU.[37] Therefore, the FCC claimed in their ruling that the Court’s decision lacked adherence to the principle of proportionality when comparing monetary and economic policies as outlined in the principle of conferral, a consideration overlooked by the CJEU.[38] While the CJEU deemed the ECB's implementation of the PSPP to be in line with the principle of proportionality, the FCC challenged this notion, highlighting what it perceived as flaws in the CJEU's assessment.

2.2. The FCC Ruling: Encroachment of Competences

Furthermore, the FCC inquired whether the PSPP respected the boundaries set out in the Treaty on the Functioning of the European Union regarding the division of competences between the EU and the Member States. The concern raised was that if the decision were to exceed the monetary policy mandate, there was an encroachment of competences to be found by the ECB, thereby breaching the principle of conferral.[39] Article 5(2) TEU states that ‘the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States’.[40] Furthermore, Article 5(1) TEU states that ‘the limits of Union competences are governed by the principle of conferral’.[41] This means that the EU can only exercise the powers that the Member States have explicitly granted through its treaties, ensuring that the EU does not have limitless authority and that its authority is derived from the explicit consent of its Member States. As such, the FCC was worried that the ECB had encroached on their competence.

However, the CJEU ruled that the ECB did not breach competences, affirming the validity of Decision 2015/774 on the PSPP.[42] The Court emphasized the ECB’s goal of maintaining price stability.[43] Even if the PSPP had foreseeable market effects, the CJEU considered it applicable as a monetary policy measure, crucial for the ECB to achieve its objectives.[44] The purchase of government bonds on secondary markets, a component of the PSPP, fell within the realm of monetary policy instruments defined in primary law.[45] Nevertheless, the CJEU ruling challenges the principle of conferral according to the FCC regarding the division of competences between the Member States and the European Union. The FCC contended that the PSPP encroaches upon the competences of the Member States for economic and fiscal policy matters.[46] Economic policy measures by the ECB would require a treaty amendment, emphasizing yet again a proportionality in ECB actions.[47] ‘The Court may only hold that an act violates the principle of conferral where institutions, bodies, offices and agencies of the European Union have exceeded the limits of their competences in a manner that specifically runs counter to the principle of conferral’.[48] Since economic policies remain a competence of the Member States, and the PSPP influences the economic policies through its monetary application, the FCC declared the PSPP to encroach on Germany’s competence of dealing with economic and fiscal matters, thereby breaching the principle of conferral.

2.3. The FCC Ruling: Safeguarding Germany's Constitutional Identity

In its ruling, the FCC argued that Decision 2015/774 harmed the constitutional identity of the German State as stipulated in the German Basic Law (Grundgesetz). This identity, defined under Article 23 and protected by Article 79(3) of the Basic Law, is rooted in core principles and values such as democracy, human dignity, and the sovereignty of the German people. The FCC contends that integration into supranational entities like the EU must adhere to these principles to safeguard the state's autonomy.[49] According to the FCC, the ECB's actions breached Germany's constitutional identity by encroaching on its competences. While Article 23 permits the transfer of sovereign powers to the EU, it also establishes limits, prohibiting the EU from unilaterally expanding its competences.[50]

Back when European Integration commenced, the German State made its accession to the EU and its giving up of some sovereignty dependent on the constitution requiring that the Bundestag must be involved in all further steps of integration, as seen in the Maastricht Urteil ruling.[51]

Any step that is deemed to lack the express consent of the Bundestag will not be considered binding in Germany.[52] As such, the EU and its institutions may only exercise powers that were explicitly transferred to them by the Bundestag, otherwise they are considered ultra vires. In this ruling, the FCC made their emphasis on maintaining their sovereignty clear, with the reasons that even though the EU is a supranational institution, the Member States remain ‘masters of the Treaties’.[53]

The FCC also claimed in the Maastricht Urteil that Art. 38 of the German Basic Law, which gives every citizen the right to democratically legitimate representation in the Federal Parliament and protects the right to participate in the exercise of State power  as found in Art. 20(2) of the German Basic Law was violated as the ECB assigned essential monetary and economic powers to the PSPP program, which should have been preserved for the Member State.[54] Henceforth, this democratic right to participation by the citizens in terms of economic matters is thereby violated, as substantial power is assigned to the ECB concerning economic policies.

Concerning the FCC ruling regarding the PSPP, it argued against the doctrine of ‘Kompetenz-Kompetenz’, which refers to the EU's exclusive competence to adjudicate jurisdictional conflicts within its own framework, found in the Maastricht Urteil and stated that the German Basic Law still does not authorize the German State to transfer sovereign powers to the EU in a way that allows the EU to create new competences for itself.[55] When Germany’s accession to the EU took place and the Maastricht Treaty was put in place, substantial powers were to be given to the institutions of the Union. Particularly relevant in this case is that in Art. F paragraph 3 of the Maastricht Treaty, where an exclusive competence was granted to the EU for jurisdictional conflicts, also known as ‘Kompetenz-Kompetenz’, which the EU can then apply to assume any further responsibilities it may require. According to this, the FCC stated in the Maastricht Urteil that State power in Germany would not be exercised by the elected representatives anymore of the German people, thus lacking a democratic structure.[56]

As such, the FCC said that the German constitutional identity prohibits the conferral of competences upon the EU just for the EU to create to decide its own competences, and therefore the ‘Kompetenz-Kompetenz’ doctrine is prohibited.[57] This ensures that EU law remains consistent with Germany's constitutional identity and prevents encroachment by supranational entities. Furthermore, German law mandates that the EU adhere to democratic principles, necessitating that any transfer of powers involve the Bundestag.[58] Amendments to the principles constituting Germany's constitutional identity are shielded from alteration, underscoring the importance of preserving the country's core values.[59] In light of these considerations, the FCC concluded that Germany's participation in the PSPP encroached on its competences, as it resulted in the relinquishment of more power to the EU.[60]  This, in turn, undermined the constitutional identity of Germany as outlined in the Basic Law.

These arguments put forth by the FCC justify their ultra vires ruling and breach of the doctrine of supremacy. The case has sparked extensive discussions, as the FCC's defiance of the EU legal order undoubtedly left its mark. It will be interesting to observe the far-reaching implications of the ruling.

Chapter 3: The FCC Ruling: Assessing its Potential Precedent-Setting Implications

3.1. Unpacking Legal Precedent: Meaning and Relevance

With the FCC’s ruling openly contradicting the doctrine of supremacy, stirring widespread debate within the EU, it is reasonable to anticipate the establishment of a legal precedent, particularly given the authority of the highest German Court, which would demonstrate a striking implication from the ruling. Traditionally, legal precedent follows the doctrine of ‘stare decisis’, which dictates that courts should honor decisions or rulings from prior cases.[61] This principle is mainly observed in common law systems. In civil law jurisdictions, including most EU Member States, precedents are persuasive rather than binding. Courts consider past decisions but are not obligated to follow them, treating precedents as 'soft law' that influences decisions when cases are sufficiently similar.[62] Given that the EU legal system is predominantly based on civil law principles, this flexible concept of precedence is also applied within the EU. Judges in national courts of Member States may be influenced by recent jurisprudential trends or changes in legal interpretation. Moreover, the consistency of past precedents enhances their persuasive impact on future rulings. Hence, analyzing the evolution of precedents in the case law of Member States is highly pertinent, given that precedents can significantly influence the dynamics of the EU legal framework. In the context of the EU, decisions made by one Member State can significantly influence the legal interpretations and rulings of other Member States. Therefore, the FCC’s ruling, which deemed the CJEU ruling ultra vires and defied the doctrine of supremacy, may have established a negative precedent for other Member States.

Since the ruling of the FCC, there have been concerns from all over the EU regarding its implications, especially in regard to having potentially set a legal precedent for the other Member States. Even in Germany, concerns have been raised that 'as one of the founding members of the European Economic Community in 1957 and the largest EU country today, Germany has in addition sent a potentially dangerous signal to the Highest Courts of other member countries’.[63] The ruling of the FCC has raised concerns regarding the authority of the CJEU and even the future of the EU. According to senior policy adviser Boniface de Champris, ‘a decision not to apply the CJEU’s jurisprudence by a Court as highly recognized as the FCC has the potential to set a precedent for other jurisdictions’.[64] Furthermore, de Champris goes further by stating that even just the potential to set a precedent will create ‘an atmosphere of legal uncertainty and unpredictability’.[65] The fear may not be misplaced as the more legal uncertainty and unpredictability there is, the more likely it is that the EU may lose its effectiveness and its legitimacy.[66] Legal certainty is a general principle of the EU, aimed at ensuring situations governed by EU law are applied in a similar and foreseeable manner.[67] However, the ruling of the FCC could lead to legal uncertainty and unpredictability as it could potentially lead to the inconsistent application of EU laws across the different Member States. If Member States choose when to apply EU law or are able to declare acts of the EU as ultra vires, an inconsistent application of laws will emerge and such application will not be foreseeable nor predictable.[68] This will further undermine the effectiveness of the EU as well as its legitimacy as it will not remain known for its supranational authority. As such, ‘it is to be hoped that this type of ultra vires decision will not set a precedent across the EU’.[69]

3.2. Assessing Precedent: Comparing Polish Constitutional Tribunal Ruling against the German FCC Ruling

To determine whether a legal precedent has been established, it is necessary to examine other cases that have declared a ruling of the CJEU as ‘ultra vires’, thereby contravening the doctrine of supremacy and whether the same argumentation has been used as previously in the FCC ruling. As seen in Chapter 2, the arguments of the FCC included a faulty proportionality assessment, an encroachment of competences and a breach of Germany’s constitutional identity. This examination will help ascertain whether another case employs similar argumentation, potentially indicating an influence of the FCC ruling. After the FCC ruling, one case which took place in Poland was vividly discussed due to it having similarities with the FCC’s ruling of ‘ultra vires’ with the argument that it went against the Polish Constitution, decided by the Polish Constitutional Tribunal (hereinafter ‘PCT’).[70] The K 3/21 judgment, decided by the PCT on October 7, 2021, involved a ruling that several provisions of the European Union were incompatible with the Polish Constitution.[71] The PCT asserted that in case of a conflict between EU law and the Polish Constitution, the latter takes precedence.[72] The tribunal argued that certain EU regulations or decisions may not adequately reflect the democratic principles and values of the Polish legal system, emphasizing the importance of democratic legitimacy within the European Union.[73] Additionally, the PCT challenged the authority of the CJEU to determine the organization of national courts in Poland, asserting that the CJEU had overreached its powers.[74] The case highlighted the hierarchical relationship between EU law and the Polish Constitution, with the PCT positioning the Polish Constitution as supreme. The PCT's judgment led to a legal dispute with the European Commission, which considered withholding funds from Poland, as the PCT chose to disregard the doctrine of supremacy of the EU and ruled the CJEU input as ‘ultra vires’.[75]

In analyzing the K 3/21 case alongside the German case, notable similarities emerge, suggesting a potential influence of the FCC ruling on the K 3/21 judgment and the establishment of a legal precedent. Both cases, adjudicated by constitutional courts, resulted in rulings asserting the supremacy of national constitutions over EU law. Just as the FCC challenged the CJEU's authority in the PSPP case, the PCT contested certain EU laws' compatibility with the Polish Constitution, highlighting the principle of national law prevailing in case of conflict. Moreover, both courts questioned the CJEU's jurisdiction, albeit on different grounds—the FCC on monetary policy and the PCT on the organization of national courts. Both cases underscore national courts' concerns regarding constitutional principles and democratic values, seeking alignment between EU law and national constitutions. The legal disputes that ensued, with Germany and Poland facing backlash from EU institutions, further underline the significance of these rulings. However, despite these parallels, there are distinct differences between the cases. While the PSPP case focused narrowly on the program's compatibility with EU law, the K 3/21 case addressed broader issues of EU law's compatibility with the Polish Constitution. Additionally, the FCC, while declaring the CJEU's ruling ‘ultra vires’, did not outright assert German law's supremacy over EU law, unlike the PCT's unequivocal stance. Moreover, the FCC provided a window for reconciliation by granting the ECB time for a proportionality test, while the PCT offered no such opportunity. While it is tempting to draw a direct link between the two cases, it is difficult to ascertain whether the PCT was directly influenced by the FCC's ruling. The PCT's comprehensive rejection of multiple EU laws and its lack of remedial measures suggest a distinct approach, albeit one potentially emboldened by the FCC's precedent. Thus, while both cases share a common outcome, their divergent approaches suggest nuanced differences in their legal reasoning and motivations.

Given these nuanced differences in legal reasoning and motivations between the two cases, it is challenging to definitively establish whether a legal precedent has been set, which influenced the PCT in their ruling. While the PCT ruling shares similarities with the FCC ruling, including its challenge to EU authority and assertion of national constitutional supremacy, the PCT's distinct approach and broader scope of rejection of EU laws indicate a unique legal trajectory. Without clearer evidence of direct influence or emulation, determining the establishment of a legal precedent remains elusive. Merely asserting that an EU law violates one's constitution would not adequately capture the nuanced potential legal precedent that might have been established by the FCC ruling. However, such assertions could potentially encourage other Member States to contest the authority of the CJEU and the EU as a whole.

The potential establishment of a legal precedent demonstrates a significant implication of the FCC’s ruling. This implication suggests that other national courts of Member States may be encouraged or emboldened to breach the doctrine of supremacy by asserting their own national laws, particularly concerning their constitutions. Moreover, Member States may become more inclined to question the rulings and authority of the CJEU.

Chapter 4: FCC Ruling and Constitutional Pluralism: Unleashing Discourse

4.1. Constitutional Pluralism: Understanding Diverse Legal Orders

The FCC ruling also has further implications by reopening the discussion on constitutional pluralism versus monism. Constitutional pluralism, a theory developed by Neil MacCormick, attempts to define the relationship between supremacy and constitutional review between the Member States and the EU.[76] This theory posits that determining overall authority between the Member States and the EU is futile as both exist in a multi-level context.[77] Additionally, it emphasizes the increasingly blurred lines between national and international law, particularly concerning the doctrine of EU supremacy versus the constitutional law of individual Member States.[78] This theory was further developed by Neil Walker, presenting a direct contradiction to the previous theory of monism, which previously explained the EU-Member State relationship in terms of supremacy.[79]

Monism perceives that all national legal systems are subordinate to a single legal order of international law.[80] In the case of the EU, the CJEU asserts this view in the Costa v E.N.E.L. judgment in 1964, stating that the EU has created its own legal system and therefore holds supremacy over its 27 Member States.[81] With the EU establishing its institutions, legal capacity, and international representation, it has created a body of law binding both itself and the national states. This entails a transfer of powers and a loss of sovereignty for Member States upon accession to the EU, rendering their sovereignty limited and establishing the doctrine of supremacy.[82] MacCormick's pluralism theory opposes a hierarchical relationship between the EU and its Member States, proposing instead a framework where each Member State constitutes a valid source of law alongside the EU.[83] He underscores the role of the CJEU in interpreting EU law while affirming the authority of each member state's highest constitutional tribunal to interpret its own laws, including their interaction with EU law.[84] As outlined by MacCormick, '[...] the interpretive power of the highest decision-making authorities of the different systems must be, as to each system, ultimate. It is for the ECJ to interpret in the last resort and in a finally authoritative way the norms of Community law. But equally, it must be for the highest constitutional tribunal of each member state to interpret its constitutional and other norms, and hence to interpret the interaction of the validity of EC law with higher level norms of validity in the given state system'.[85] This statement underscores the CJEU's authority in interpreting EU law and the autonomy of each member state's highest constitutional tribunal in interpreting its own laws, reflecting the concept of constitutional pluralism where multiple legal systems coexist with their own interpretive autonomy.

4.2. FCC Ruling: Bridging Monism and Constitutional Pluralism

While the concept of constitutional pluralism has gained prominence in recent years, it underscores the potential for conflict when there are multiple sources of authority and competing claims over final decision-making.[86] In such scenarios, conflicts may arise, particularly if there is no clear hierarchical regulation or if existing hierarchies are disregarded, as seen in the FCC's ruling. In its ruling the FCC claimed that the CJEU did not have the authority to declare a ruling based on the lack of a proportionality assessment and based on the encroachment of competences and constitutionality.

However, the CJEU would disagree thereby creating an existence of competing claims of final authority, highlighting the concept of constitutional pluralism, due to the tension between the CJEU and the FCC and Germany’s national constitutional identity. Furthermore, ‘if the supremacy of European law could be questioned by anyone who dislikes some of its parts, the European legal order would effectively suffer if not even die off’.[87] Having the FCC assert the primacy of the German Basic Law and the German Constitution over EU law, reflects a mirror image of constitutional pluralism, where national constitutions view themselves as supreme as well as the EU. The dispute between the FCC and the CJEU ‘is an expression of the nonhierarchical judicial order of the EU, a multipolar order in which both the CJEU and Highest Courts at Member State level claim the “last word” about constitutional conflict’.[88] Constitutional pluralism can only function well when both parties engage in a constructive and innovative constitutional discourse. Conversely, it carries the risk of constitutional turmoil if conflicting instructions are issued and each side rigidly adheres to its own viewpoint.[89] This challenges the hierarchical constitutional order enforced by the EU through the doctrine of supremacy, illustrating the complex relationship between EU supremacy and the sovereignty of Member States.

Following the FCC's open defiance against the EU, conflicts and discussions surrounding constitutional pluralism have garnered increasing attention. The application of this concept ‘appears to offer the best way to construct a relationship that nurtures the degree of political integration and therefore the degree of legal supremacy in the relationship between EU law and national constitutional law’.[90] Following the evolution of constitutional pluralism, several scholars proposed the establishment of an additional court to address constitutional matters. This proposal stemmed from their diagnosis of escalating conflicts between the CJEU and the Member State courts. They foresaw these conflicts compounding over time as both entities vied for ultimate authority in disputes between EU law and Member State constitutional courts. Weiler’s proposal suggested creating a court composed of judges from the highest courts of Member States and the president of the CJEU.[91] He suggests that ‘such a Court would be supreme over both the CJEU and the Member States, hence could also revoke rulings from the CJEU’.[92] However, some scholars oppose this idea, citing concerns about potential conflicts over competences between the EU and Member States. They argue that even with such a court in place, disputes could still arise based on constitutional conflicts. Additionally, there are doubts about whether Member State Constitutional Courts would fully accept the rulings of such a court without questioning its authority, as it would entail granting supremacy to yet another EU institution as it would be ‘[...] an unrealistic expectation for the Member State Constitutional Courts to accept all of the rulings of that Court without also putting it into question, as it would still imply granting an EU institution the supreme authority.’[93]

Despite the potential benefits of incorporating constitutional pluralism into the EU to improve the relationship between the EU and its Member States, the solution with such a Court would not solve the fundamental issues of state autonomy and the concept of supremacy. Even with such a Court, conflicts between national courts and the EU could still occur. Therefore, it is suggested by other scholars that it would be ‘more promising to learn to live with the multipolar legal order of the EU like it is, and to encourage all sides to engage in fruitful dialogue and mutual adjustment wherever possible’.[94]

The discussion surrounding constitutional pluralism versus a monist approach to conflicts between the EU and Member States continues to evolve. The FCC ruling, which challenged the idea of EU supremacy over national courts, has brought renewed attention to this debate. By questioning the primacy of the EU over national constitutions, the FCC challenged the monist view of EU law as superior to national law, thereby questioning the overall EU legal order. This ruling reignited debates about the relationship between the EU's legal order and that of its Member States, emphasizing the complexity of constitutional pluralism within the EU. With multiple legal systems coexisting, each with its own understanding of authority, the ruling underscores the need to address constitutional disputes between the EU and its Member States regarding supremacy. Concludingly, the FCC ruling draws attention back to the discussion of constitutional pluralism and the potential solutions for resolving constitutional disputes within the EU. This highlights the ongoing importance of exploring how different legal systems can coexist and interact effectively within the European context. In essence, this renewed debate not only underscores the complexities of constitutional pluralism within the EU but also serves as another implication of the FCC’s ruling, shedding light on the ongoing discourse surrounding the relationship between EU law and the legal systems of its Member States.

Concludingly, the renewed discussion on constitutional pluralism, prompted by the FCC's ruling in the PSPP case, may significantly impact the EU legal order. This ruling could foster skepticism towards the EU and question the stability of its legal system, as it underscores the persistent tensions between national sovereignty and EU authority. By challenging the unqualified supremacy of EU law, the ruling invites further examination and debate on the balance of power within the Union, potentially reshaping the perspective on the EU’s legal order.

Chapter 5: The Tension Between EU Autonomy and Member State Sovereignty

5.1. Sovereignty Dynamics: Navigating State Authority in the EU Framework

A last implication of the FCC ruling is that it has reignited discussion surrounding the delicate balance between state sovereignty and EU autonomy.[95] The concept of sovereignty emerged in the aftermath of the Peace of Westphalia in 1648, marking a significant shift as states began delineating clear boundaries and asserting authority over their territories and populations, transforming subjects into citizens.[96] Scholars further define sovereignty as a normative conception that intertwines authority, territory, and recognition, emphasizing the state's supreme authority and its international recognition.[97] The principle of sovereignty’s definition developed into two dimensions, internal sovereignty as well as external sovereignty. Internal sovereignty denotes the authority granted to a government within its state, enabling it to govern its citizens and enact laws. Conversely, external sovereignty refers to a state's ability to engage with other states on the international stage.[98] While internal sovereignty focuses on domestic governance, external sovereignty underscores a state's interactions on a global scale.[99]

In both internal and external sovereignty, the national constitution encapsulates this principle by asserting that no authority can supersede the state's own sovereignty, and no external power can be imposed without adhering to constitutional processes.[100] However, this traditional embodiment of sovereignty faced challenges with the emergence of supranational institutions like the European Coal and Steel Community (ECSC) in 1951.[101] This marked the first instance where multiple European nations voluntarily ceded some sovereign powers to a collective entity. Subsequent treaties, such as the Maastricht Treaty and the Lisbon Treaty, further diversified the concept of sovereignty, introducing provisions for EU membership and constitutional amendments in Member States. For instance, Art. 23 of the German Constitution stipulates that the German State may ‘transfer sovereign powers’, albeit with the consent of the Bundesrat, to ‘establish a united Europe’. Similarly, Art. 88(1) of the French Constitution acknowledges that the Republic has ‘freely chosen to exercise some of its powers in common’ with the TEU and the TFEU. Furthermore, Art. 7(6) of the Portuguese Constitution and, since 2001, Art. 28 of the Greek Constitution also delegates some sovereign powers to the EU, while maintaining the ultimate authority of the Member States.[102] These constitutional provisions, indicative of Member States' insistence on retaining sovereignty, highlight a looming conflict as EU law on the other hand, asserts its supremacy over national legal frameworks.

5.2. EU Autonomy: Supranational Authority

The European Union operates as a supranational international organization, wielding authority above national laws and states through its doctrine of supremacy.[103] This doctrine establishes the EU as the paramount legal authority, empowered to assess the compatibility of national laws with EU principles and objectives.[104] Initially, the EU's legal framework acknowledged the limited transfer of sovereign rights by Member States, recognizing a delicate interplay between national sovereignty and EU integration.[105] Over time, however, the EU has solidified its autonomy from national legal systems, establishing a distinct legal order comprising treaties, regulations, and directives. This process has marked a significant transformation, shifting the EU from a union of sovereign states to a unified entity governed by its own legal mechanisms.[106] Despite the EU's efforts to assert itself as a supranational entity, tensions persist with Member States intent on upholding their national sovereignty. Disputes often arise when EU directives intersect with national policies or laws, sparking debates over the distribution of competences and power between the EU and its Member States. As the EU seeks to centralize its authority and declare autonomy from national laws, questions arise regarding the extent to which Member States should relinquish their sovereignty.[107] The allocation of competences between the EU and Member States illustrates the autonomy of the EU, as the division of competences fundamentally shapes the extent of sovereignty given to the EU by each Member State.[108] The CJEU plays a pivotal role in upholding EU autonomy, emphasizing its importance in maintaining the effectiveness of EU law. Key principles such as supremacy, direct effect, and the preliminary ruling procedure rely on the autonomy of the EU legal system.[109] However, the pursuit of autonomy can also create tensions, as it diminishes the influence of Member States and their national courts, thereby eroding their sovereignty. This delicate balance between supranational authority and national sovereignty remains a complex challenge for the EU. The recent ruling by the FCC underscores these tensions, highlighting the ongoing struggle to reconcile the EU's quest for autonomy with the sovereignty concerns of its Member States. By challenging the supremacy of EU law, the FCC's decision brings to the forefront the complex interplay between EU integration and national sovereignty. As the EU legal order continues to evolve, navigating these tensions will be crucial in maintaining its effectiveness and legitimacy as a supranational entity while respecting the sovereignty of its Member States.

5.3. State Sovereignty vs EU Autonomy: The FCC Ruling and Its Impact

The FCC's ruling has ignited a significant debate regarding the delicate balance between state sovereignty and EU autonomy. By openly challenging the doctrine of EU supremacy and prioritizing its national court ruling over the decision of the CJEU, the FCC has underscored Germany's assertion of its national sovereignty. This move exacerbates the ongoing conflict between the EU's autonomy and the sovereignty of its Member States.

Central to the FCC's arguments is the issue of Germany's sovereignty concerning the CJEU's ruling and the ECB's implementation of the PSPP. The FCC contends that the CJEU's proportionality ruling ‘renders the principle meaningless’, criticizing its failure to conduct a comprehensive economic policy analysis.[110] By overlooking crucial aspects such as the balancing of conflicting interests, the CJEU's assessment was deemed insufficient by the FCC, leading to the declaration of the ECB's actions as ‘ultra vires’.[111] In essence, the FCC's stance emphasizes Germany's sovereignty over its economic policies, challenging the EU's assertion of authority in this domain. The FCC ruled the ECB’s actions to be ‘ultra vires’, due to a lack of a proper proportionality assessment, which is necessary to examine whether the PSPP adheres to the principle of proportionality, thereby not breaching the sovereignty of the German State. Thus, the FCC is insisting on a proper assessment for the PSPP, to ensure in which ways the economic and monetary policies are being applied, simply asserting Germany’s right to apply the mechanism of proportionality, to ensure that institutions of the EU, in this case the ECB, adhere to the limits of their mandates and do not overstep into areas where national sovereignty is at stake.[112] In the FCC’s opinion, the ECB did overstep its mandate by not delivering a proportionality assessment up the FCC’s standard, making the FCC declare the CJEU ruling as ‘ultra vires’, arguing that there was indeed a breach of sovereignty.[113]

The FCC also argues that the ECB's PSPP encroaches upon the competences of Member States in economic and fiscal policy matters, directly challenging Germany's authority in these domains.[114] This breach of the principle of conferral undermines Germany's autonomy over its economic policies, as economic policy measures are traditionally within the discretion of EU Member States.[115] The FCC's ruling reflects its commitment to preserving Germany's autonomy in economic and fiscal matters, even at the expense of challenging the EU's authority. The insistence of the FCC to have the CJEU perform, in their opinion, a proper proportionality assessment regarding the PSPP, highlights Germany’s resoluteness to emphasize and maintain its sovereignty over its economic policies. By expecting a more thorough evaluation of the economic policies of the PSPP, one up to their standards, the FCC is asserting Germany’s right to regulate economic matters with their own autonomy, independent of the EU’s objections and to its dismay. Therefore, the lack of a proper proportionality test does not only represent an occasion for the FCC to reiterate Germany’s sovereignty, but it also illustrates the FCC’s attempt to preserve their Member States’ autonomy in terms of economic decisions, as highlighted in their German constitution. Furthermore, the FCC with their ruling also underlines that Germany does have the authority to do so. According to the FCC, the denial of the CJEU of any breaches of the principle of conferral underscores another potential justification for violating the supremacy doctrine as the CJEU does hold the power to declare acts as contravening the principle of conferral, when the EU overreaches its boundaries of their competences.[116] The FCC argues that the ECB's PSPP encroaches upon the competences of Member States in economic and fiscal policy matters, directly challenging Germany's sovereign authority over these domains and breaching the principle of conferral, as economic policies are left to the discretion of EU Member States to implement.[117] 

With its ruling, the FCC has demonstrated the assertion of its sovereignty in two significant ways. Firstly, it declared the CJEU's ruling ‘ultra vires’, thereby rejecting the doctrine of supremacy and asserting the primacy of its national constitution. Secondly, it argued that the ECB's actions breached the principle of conferral, encroaching upon Germany's competences and undermining its sovereignty. The FCC's ruling represents a significant assertion of sovereignty, challenging the supremacy of EU law and raising critical questions about the balance between EU autonomy and Member States' sovereignty, particularly in the application of EU law in national contexts. It suggests that national sovereignty should prevail over EU law, illustrating the ongoing tension between Member States' sovereignty and the EU's authority. This assertion of sovereignty reflects the FCC's commitment to preserving Germany's autonomy in economic and fiscal matters, challenging the EU's authority and autonomy. By challenging the CJEU's ruling and the ECB's actions, the FCC exercises Germany's sovereign right to formulate economic policies aligned with its national interest, rather than the EU's.

However, this defiance of EU authority raises critical questions about the balance between EU autonomy and Member States' sovereignty, particularly regarding the application of EU law in national contexts. As the EU grapples with these challenges, it must carefully navigate the complex dynamics between supranational authority and national sovereignty to ensure the continued cohesion and effectiveness of the European Union. Yet, the FCC's assertion of national sovereignty over EU law challenges the foundational principles of European integration and threatens to undermine the cohesion and effectiveness of EU institutions. Moreover, it sets a precedent for other Member States to challenge EU authority by asserting their own sovereignty, potentially leading to further fragmentation and discord within the Union, thereby disrupting the EU legal order.

Chapter 6: Conclusion

The aim of this article was to examine the implications of the German Federal Constitutional Court’s decision on the legal order of the European Union in the PSPP case. Firstly, the possibility of establishing a legal precedent was analyzed, suggesting a high likelihood that this ruling sets a precedent. However, confirmation of this will only come with time, depending on whether other Member States follow the FCC’s lead and challenge the doctrine of EU supremacy. Secondly, discussions surrounding the doctrine of constitutional pluralism have intensified since the FCC’s ruling. This increase can lead to legal uncertainty regarding the supremacy of EU law and its application, potentially undermining legal predictability if EU law is no longer universally seen as supreme. Moreover, heightened discussions on constitutional pluralism may lead to divergent legal interpretations between national courts and EU institutions, possibly resulting in fragmentation of the EU legal order. Lastly, the article explored the tension between Member States asserting their sovereignty and the EU upholding its autonomy, as highlighted by the FCC ruling. This dynamic is concerning, as increased tensions may prompt Member States to challenge the supremacy principle, asserting that national law should prevail over EU law in certain circumstances. Such challenges could undermine the EU legal order. Furthermore, discussions about state sovereignty could exacerbate legal uncertainty if Member States begin to question the primacy of EU law, potentially leading to further fragmentation of the EU legal order.

The findings of this article have several implications for both theory and practice in the field of EU law. Firstly, the establishment of a potential legal precedent by the German Federal Constitutional Court in the PSPP case suggests a significant challenge to the supremacy of EU law. This has led to increased discussions about constitutional pluralism and state sovereignty, which could lead to legal uncertainty and fragmentation within the EU legal order. Such developments may weaken the unity and cohesion of the EU, potentially hindering further integration efforts and impacting economic stability. Moreover, the FCC ruling raises questions about the role of national courts versus the CJEU and the potential for sovereignty claims. These dynamics could have far-reaching implications for EU jurisprudence and the balance of power between Member States and EU institutions. These findings illustrate that the FCC’s ruling has significant implications that could have a larger impact in the future than anticipated, potentially leading to the fragmentation of the EU legal order. The ramifications of these implications within Member States could affect public perception and trust in the EU, posing challenges to EU legitimacy and democratic accountability. Addressing these challenges will require coordinated efforts among Member States to strengthen EU legal frameworks, foster dialogue, and build consensus on matters of legal interpretation and sovereignty.

It would be valuable to conduct additional research on the implications of the FCC ruling in the coming years to determine if a trend has been established that other Member States will follow. These findings underscore how a single court decision from one Member State can affect the entire EU. Despite there being 27 Member States, the impact of one is sufficient. It would be intriguing to investigate whether the FCC’s ruling had such implications due to the role of the FCC, and whether a similar ruling from another court in a different Member State would have had a comparable impact. Future research should also explore the broader societal and economic implications of the FCC ruling and examine whether similar rulings in other Member States would have comparable impacts. These findings underscore the need for the EU to navigate carefully between respecting national sovereignty and upholding EU law to ensure the continued unity and effectiveness of the European Union.

In conclusion, the German FCC with its ruling has sparked significant debate within the European Union and its Member States. These developments underscore the challenges and potential risks to the EU legal order, including legal uncertainty, potential fragmentation, and implications for EU unity. Moving forward, it is essential for the EU to navigate these challenges carefully, balancing the principles of EU law to ensure the continued cohesion and effectiveness of the Union.

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Footnotes

[1] Case 6/64 Flaminio Costa v E.N.E.L. [1964] ECR 585.

[2] European Parliament, 'Sources and Scope of European Union Law' <https://www.europarl.europa.eu/factsheets/en/sheet/6/sources-and-scope-of-european-union-law>.

[3] Case 6/64 Flaminio Costa v E.N.E.L. [1964] ECR 585.

[4] Bernard Stirn, The European Legal Order (Oxford Academic 2017) p.44.

[5] European Parliament, 'Sources and Scope of European Union Law' <https://www.europarl.europa.eu/factsheets/en/sheet/6/sources-and-scope-of-european-union-law>.

[6] ibid.

[7] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15.

[8] Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR – I 04199, paras 15, 17.

[9] ibid.

[10] C. Freudlsperger, M. Jachtenfuchs ‘A member state like any other? Germany and the European integration of core state powers’ [2021] Volume 43 Issue 2 Journal of European Integration.

[11]‘EU Institution: European Central Bank’ (European Union) <https://www.ecb.europa.eu/home/html/index.en.html>.

[12] Will Kenton, ‘Eurozone Definition, History, Member Countries’ (Investopedia, 30 June 2022) <https://www.investopedia.com/terms/e/eurozone.asp.>.

[13] G. Claeys A. Leandro A. Mandra European Central Bank Quantitative Easing: The Detailed Manual (Bruegel Policy Contribution 2015) p.1.

[14] G. Claeys A. Leandro A. Mandra European Central Bank Quantitative Easing: The Detailed Manual (Bruegel Policy Contribution 2015) p.2.

[15] ibid.

[16] G. Claeys A. Leandro A. Mandra European Central Bank Quantitative Easing: The Detailed Manual (Bruegel Policy Contribution 2015) p.1.

[17] ibid.

[18] Case 493/17 Weiss & others [2018] ECR - I 26.

[19] ibid.

[20] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15.

[21] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 119.

[22] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 232.

[23] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 233.

[24] Press Release of the Court of Justice of the European Union 58/20 of 8 May 2020 press release following the judgment of the German Constitutional Court of 5 May 2020 [2020].

[25] ibid.

[26] Case 212/04 Adeneler and Others v Ellinikos Organismos Galaktos [2006] ECR 6057, para 122.

[27] Press Release of the Court of Justice of the European Union 58/20 of 8 May 2020 press release following the judgment of the German Constitutional Court of 5 May 2020 [2020].

[28] Case 493/17 Weiss & others [2018] ECR - I 26, para 72.

[29] Case 493/17 Weiss & others [2018] ECR - I 26, para 71.

[30] Case 493/17 Weiss & others [2018] ECR - I 26, paras 74-78.

[31] Case 493/17 Weiss & others [2018] ECR - I 26, para 81.

[32] Case 493/17 Weiss & others [2018] ECR - I 26, para 82.

[33] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 232.

[34] European Central Bank Decision 774 of 14 May 2015 on a secondary markets public sector asset purchase programme [2015] OJ L121; European Central Bank Decision 2101 of 5 November 2015 amending Decision (EU) 2015/774 on a secondary markets public sector asset purchase programme [2015] OJ L303/106; European Central Bank Decision 2464 of 16 December 2015 amending Decision (EU) 2015/774 on a secondary markets public sector asset purchase programme [2015] OJ L344/2; European Central Bank Decision 702 of 18 April 2016 amending Decision (EU) 2015/774 on a secondary markets public sector asset purchase programme [2016] OJ L121; European Central Bank Decision 100 of 11 January 2017 amending Decision (EU) 2015/774 on a secondary markets public sector asset purchase programme [2017] OJ L16.

[35] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 165.

[36] Case 62/14 Peter Gauweiler and Others v Deutscher Bundestag [2015] ECR – I 09341, para 66.

[37] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 75.

[38] ibid.

[39] Principle of conferral

[40] Treaty on European Union (TEU) [2012] OJ C326/18, art 5(2).

[41] Treaty on European Union (TEU) [2012] OJ C326/18, art 5(1).

[42] Case 493/17 Weiss & others [2018] ECR - I 26, para 168.

[43] Case 493/17 Weiss & others [2018] ECR - I 26, paras 60-61.

[44] Case 493/17 Weiss & others [2018] ECR - I 26, paras 62-67.

[45] Case 493/17 Weiss & others [2018] ECR - I 26, paras 68-70.

[46] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 140.

[47] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 111.

[48] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 110; Grundgesetz für die Bundesrepublik Deutschland (German Basic Law) §23(1).

[49] BVerfG, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 136.

[50]   Grundgesetz für die Bundesrepublik Deutschland (German Basic Law) §23.

[51] BVerfG, Urteil des Zweiten Senats vom 12. Oktober 1993 - 2 BvR 2134/92, 2 BvR 2159/92.

[52] J. Wieland ‘Germany in the European Union - The Maastricht Decision of the Bundesverfassungsgericht’ [1994] Volume 5 Issue 2 European Journal of International Law.

[53] J. Wieland ‘Germany in the European Union - The Maastricht Decision of the Bundesverfassungsgericht’ [1994] Volume 5 Issue 2 European Journal of International Law p.263.

[54]  Grundgesetz für die Bundesrepublik Deutschland (German Basic Law) §79(3).

[55] BVerfG, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 102.

[56] BVerfG, Urteil des Zweiten Senats vom 12. Oktober 1993 - 2 BvR 2134/92, 2 BvR 2159/92, p.7, 8.

[57] BVerfG, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 102.

[58] Grundgesetz für die Bundesrepublik Deutschland (German Basic Law) §23(1).

[59] Grundgesetz für die Bundesrepublik Deutschland (German Basic Law) §79(3).

[60] BVerfG, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 33.

[61] V. Fon, F. Parisi ‘Judicial Precedents in Civil Law Systems: A Dynamic Analysis’[2005] The Berkeley Electronic Press Article 10.

[62] ibid.

[63] M. Höpner ‘Proportionality and Karlsruhe’s Ultra Vires Verdict: Ways Out of Constitutional Pluralism?’ [2021]  MPIfG Discussion Paper No. 21/1 Max Planck Institute for the Study of Societies.

[64] B. de Champris The German Constitutional Court’s PSPP Judgment: Legal, Economic and Political Consequences (Lighthouse Europe 2020).

[65] ibid.

[66] P. Takis Tridimas, ‘Indeterminacy and Legal Uncertainty in EU Law’ (2019) King’s College London Research Paper King’s College London Dickson Poon School of Law Legal Studies Research Paper Series: Paper No. 2019-19.

[67] Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR – I 04199, paras 15, 17.

[68] ibid.

[69] M. Wendel ‘Paradoxes of Ultra-Vires Review: A Critical Review of the PSPP Decision and Its Initial Reception’ [2020] Volume 21 German Law Journal p.979-994.

[70]  K 3/21 (Polish Constitutional Court, 2021).

[71] Press Release of the Polish Constitutional Tribunal of 7 October 2021 press release following the judgment of the Polish Constitutional Tribunal, Ref. No. K 3/21 para II.

[72] Press Release of the Polish Constitutional Tribunal of 7 October 2021 press release following the judgment of the Polish Constitutional Tribunal, Ref. No. K 3/21 para I (1).

[73] Press Release of the Polish Constitutional Tribunal of 7 October 2021 press release following the judgment of the Polish Constitutional Tribunal, Ref. No. K 3/21 para I (2).

[74] ibid.

[75] Press Release of the Polish Constitutional Tribunal of 7 October 2021 press release following the judgment of the Polish Constitutional Tribunal, Ref. No. K 3/21 para I (1).

[76] A.Bobíc, ‘Constitutional Pluralism Is Not Dead: An Analysis of Interactions Between Constitutional Courts of Member States and the European Court of Justice’ [2017] Volume 18 Issue 6 German Law Journal.

[77] P.J. Castillo-Ortiz, ‘National Higher Courts and European Integration: A Survey of Six Decades of Academic Inquiry’ [2017] Volume 18 Issue 4 German Law Journal.

[78] J. Shaw, ‘Process and Constitutional Discourse in the European Union’ [2000] Volume 27 Issue 1 Journal of Law and Society.

[79] Neil Walker, Sovereignty in Transition (Bloomsbury Publishing 2006).

[80] P. Eleftheriadis ‘Pluralism and Integrity’ [2010] Volume 23 Issue 3 Ratio Juris.

[81]  Case 6/64 Flaminio Costa v E.N.E.L. [1964] ECR 585.

[82] A.Bobíc, ‘Constitutional Pluralism Is Not Dead: An Analysis of Interactions Between Constitutional Courts of Member States and the European Court of Justice’ [2017] Volume 18 Issue 6 German Law Journal.

[83] ibid.

[84] ibid.

[85] N. MacCormick ‘The Maastricht-Urteil: Sovereignty Now’ [1995]  Volume 1 Issue 3 European Law Journal p.262.

[86] M. Maduro ‘Three Claims of Constitutional Pluralism’ [2012] Berline Social Science Center.

[87] M. Höpner ‘Proportionality and Karlsruhe’s Ultra Vires Verdict: Ways Out of Constitutional Pluralism?’ [2021]  MPIfG Discussion Paper No. 21/1 Max Planck Institute for the Study of Societies p 2.

[88] M. Höpner ‘Proportionality and Karlsruhe’s Ultra Vires Verdict: Ways Out of Constitutional Pluralism?’ [2021]  MPIfG Discussion Paper No. 21/1 Max Planck Institute for the Study of Societies p 4.

[89] ibid.

[90] M. Maduro ‘Constitutional Pluralism and the Principles of Counterpoint Law’ [2021] European Central Bank Legal Conference p.165.

[91] Joseph Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor’ and Other Essays on European Integration (Cambridge University Press 1999) p. 322.

[92] ibid.

[93] M. Maduro ‘Constitutional Pluralism and the Principles of Counterpoint Law’ [2021] European Central Bank Legal Conference p.165.

[94] M. Maduro ‘Constitutional Pluralism and the Principles of Counterpoint Law’ [2021] European Central Bank Legal Conference p.166.

[95] L. Blutman ‘Red Signal from Karlsruhe: Towards a New Equilibrium or New Level of Conflict?’ [2020] Volume I Issue 2 Central European Journal of Comparative Law.

[96] E. Berga, E. Kuusk ‘What makes sovereignty a relative concept? Empirical approaches to international society’ [2010] Volume 29 Issue 1 Political Geography.

[97] Thomas Biersteker, Cynthia Weber, State Sovereignty as a Social Construct (Cambridge University Press 1996).

[98] A. Albi, P. Van Elsuwege, ‘EU Constitution, National Constitutions and Sovereignty: An Assessment of a ‘European Constitutional Order’’ (2004) Sweet & Maxwell and Contributors.

[99] ibid.

[100] Thomas Biersteker, Cynthia Weber, State Sovereignty as a Social Construct (Cambridge University Press 1996).

[101] E. Berga, E. Kuusk ‘What makes sovereignty a relative concept? Empirical approaches to international society’ [2010] Volume 29 Issue 1 Political Geography.

[102] A. Albi, P. Van Elsuwege, ‘EU Constitution, National Constitutions and Sovereignty: An Assessment of a ‘European Constitutional Order’’ (2004) Sweet & Maxwell and Contributors.

[103] Case 6/64 Flaminio Costa v E.N.E.L. [1964] ECR 585.

[104] ibid.

[105] Jan Willem van Rossen, The Autonomy of EU Law: More is Less? (Asser Press 2013) p.14.

[106] Jan Willem van Rossen, The Autonomy of EU Law: More is Less? (Asser Press 2013) p.15.

[107] ibid.

[108] Jan Willem van Rossen, The Autonomy of EU Law: More is Less? (Asser Press 2013) p.20.

[109] Jan Willem van Rossen, The Autonomy of EU Law: More is Less? (Asser Press 2013) p.22.

[110] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 127.

[111] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 138.

[112] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 53.

[113] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 109.

[114] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 138.

[115] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 226.

[116] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 110; Grundgesetz für die Bundesrepublik Deutschland (German Basic Law) §23(1).

[117] Bundesverfassungsgericht, Urteil des Zweiten Senats vom 5. Mai 2020 - 2 BvR 859/ 15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15 para 140.