Brussels and Berlin have sealed the peace in the serious jurisdictional conflict between the EU Court of Justice and the German Constitutional Court. The European Commission has announced this Thursday that it is shelving the open file against Germany after a Constitutional ruling that rejected the validity of a verdict of the European court. Without such an agreement, the Commission could have sued Germany before the European Court, risking further souring the conflict.
The Commission assures that Berlin has committed in writing to “recognize the authority of the Court of Justice of the EU, whose decisions are final and binding”. The agreement marks a precedent for the resolution of a similar, but much more serious, conflict with Poland, whose Constitution has even rejected the application of several articles of the EU Treaty itself.
The case against Germany was initiated precisely with the aim of preventing the ruling of the Constitutional Court based in Karlsruhe from giving rise to the rebellion of the courts of other countries. “The Commission considers that the ruling of the German Constitutional Court constitutes a serious precedent, both for the future action of that same court and for the supreme and constitutional courts of other Member States,” said the community body when opening the case against Germany last June 9.
The fears of the president of the Commission, Ursula von der Leyen, materialized a few months later. On October 7, the Constitutional Court of Poland ruled that several articles of the European Treaty are unconstitutional in that country, a partner of the EU since 2004. The verdict, much more blunt than that of Karlsruhe, put in check the principle of the primacy of law European, cornerstone of the legal structure of the EU.
Brussels and Warsaw have since maintained a harsh scuffle over the Constitutional ruling and the attacks against judicial independence in Poland, which for now prevents the approval of the national recovery plan that would give Poland access to more than 36,000 million euros in funds Europeans.
The peace agreement signed with Berlin could serve as a model to resolve the dispute with the Government of Mateusz Morawiecki, although all the sources consulted indicate that the Polish Executive, unlike that of Angela Merkel, has so far shown no willingness to seek a consensual exit.
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In the German case, originated by a Constitutional ruling against an ECB debt program validated by European justice, Brussels has settled for commitments by the German authorities that are described as “very strong”. First, according to the Commission, “Germany has formally decreed that it affirms and recognizes the principles of autonomy, primacy, effectiveness and firm application of Union law.” Furthermore, “Germany explicitly recognizes the authority of the Court of Justice of the EU.” And, thirdly, the German authorities “undertake to use all means at their disposal to prevent a future repetition” of a sentence such as the one that led to the opening of the file.
Isaac Ibáñez, a lawyer who has closely followed the file, believes that the Commission’s complaint against Germany “would have had merely declarative effects, since no German institution can amend the plan to its Constitutional Court.”
The German Constitutional ruling, issued in May 2020, endangered the continuity of the ECB’s public debt purchase program. But it was never fully executed because the German judges were satisfied with the justifications provided by the German central bank and rejected the demands to enforce the verdict in April 2021. Brussels has also chosen to be satisfied with the commitments made by the outgoing government of Angela Merkel and has closed the case just days before the chancellor passes the witness to Olaf Scholz. Slate and new account, until the next clash with Karlsruhe.