Thu. Jun 10th, 2021

Today, the European Commission has decided to send a letter of formal notice to Germany for violation of fundamental principles of EU law, in particular the principles of autonomy, primacy, effectiveness and uniform application of Union law, as well as the respect of the jurisdiction of the European Court of Justice under Article 267 TFEU.

On 5 May 2020 the German Federal Constitutional Court handed down its judgement on the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB) declaring it to be ‘ultra vires’, going beyond its competence. In the same judgement the German Constitutional Court also declared a judgment of the Court of Justice (“Heinrich Weiss and Others”) to be ‘ultra vires’ –  without referring the matter back to the Court of Justice.

As a consequence, the German Court deprived a judgment of the European Court of Justice of its legal effect in Germany, breaching the principle of the primacy of EU law. This is the reason now for starting this infringement procedure. By order of 29 April 2021, the German Constitutional Court rejected two requests seeking an order of execution for the judgment of 5 May 2020.

However, the order of 29 April 2021 of the German Constitutional Court does not reverse the breaches concerning the principle of primacy of Union law. The Commission considers that the judgment of the German Constitutional Court constitutes a serious precedent, both for the future practice of the German Constitutional court itself, and for the supreme and constitutional courts and tribunals of other Member States. Germany now has two months to reply to the concerns raised by the Commission.