Posted by: westlancashirerecord | June 22, 2016

Game, Set And Concession On EU Justice?

In his usual almost peerless style Ambrose Evans-Pritchard of the Telegraph writes about the march of the European Court of Justice into EU primacy. His view of Brexit is that it is about the supremacy of Parliament and nothing else. On this occasion he writes;

Germany’s top judges germancourt have warned in a landmark case that they will not tolerate any measure or legal finding from the European Union that clashes with the higher principles of the German Basic Law, but have retreated on a crucial point, implicitly bowing to EU primacy.

The ruling by the German constitutional court in Karlsruhe reiterates a long-standing position that Germany does not accept claims of judicial supremacy by the European Court of Justice (ECJ) eujudges. But the wording is weaker than its explosive ruling on Lisbon Treaty in 2009 and marks a climb-down.

“The court has asserted its residual right to review EU law but in practice it has submitted,” said Gunnar Beck, a constitutional lawyer at the University of London, SOAS.

The decision offers little succour to eurosceptics or to the UK Supreme Court as it builds up its own sovereignty doctrine based on the Bill of Rights, the Magna Carta, and the historical acts that make up Britain’s inherited constitution. It therefore has a bearing on the Brexit debate. Both David Cameron and Boris Johnson have cited Karlsruhe’s muscular approach as an example that British judges should follow if the ECJ exceeds its power or misinterprets EU law.

The German court ruled that the European Central Bank’s rescue machinery (OMT) for the Italian and Spanish bond markets in August 2012 does not in itself breach the German Basic Law or Grundgesetz and can therefore go ahead.

The decision has a sting in the tail. It stated that the OMT can be used only to buy the bonds of countries that still enjoy “market access”, effectively rendering the policy unusable. A country with market access does not need a rescue by definition. This hardly matters since the eurozone now has a rescue fund to do the job (ESM) and the issue is in any case academic at this stage.

The scheme has been overtaken by the ECB’s blitz of quantitative easing, which has blanketed the eurozone bond market and driven yields to historic lows, even in the high-debt periphery. Italy and Spain can borrow at negative rates for two years, and Ireland for five years.

The greater significance of the decision is what it implies about the relationship between the ECJ and the national courts, and whether or not the European Court is establishing supremacy one step at a time. The German judges stated that EU law has its limits and can never take precedence over the Grundgesetz. “The legitimacy given to state authority by elections may not be depleted by transfers of powers and tasks to the European level,” it said.

The court ruled that “the principle of sovereignty of the people (Volkssouveränität)” is violated if EU bodies trespass on democracy. It said the German state is required to “use legal or political means” to revoke or block measures if “institutions, bodies, offices and agencies of the EU exceed their competences in a manifest and structurally relevant manner or violate the constitutional identity in other ways.”

The language is strong but formulaic, and lacks the passion of the Lisbon ruling. Then, the court thundered that the EU member states are “masters of the Treaties” and not the other way round, and listed a catalogue of sovereign policy domains that must “forever remain German”. Crucially, it bowed to the European Court on a key question of authority. The German judges issued a preliminary ruling in 2014 that the ECB had overstepped its mandate and was probably acting “ultra vires”.

It referred the case to Luxembourg for a second opinion – the first time it has ever done so – but effectively “gift-wrapped” this in such a way as to tie the hands of the ECJ in advance. This failed. The ECJ swept aside the pre-judgment unceremoniously. In effect, Europe’s judges called the bluff of the German court. The once mighty Verfassungsgericht could have chosen to make a stand but has instead accepted the verdict quietly. “The dog has barked again, but it has never yet bitten,” said Martin Howe QC

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 an expert on EU law.

The German court is in a delicate position. It is loathe to reignite the EMU debt crisis. It also works from the twin principles that the German people has deemed European co-operation to be a high priority, and that it should – wherever possible – work in spirit of fraternal solidarity with other courts, the so-called principle of ‘Gerichtsverbund’. Prof Beck, who himself has a key case pending in Karlsruhe, says the court clearly chose to publish its decision two days before the EU referendum in Britain to put to rest any remaining fears about the eurozone bond market.

If so, the court has inadvertently shone a light on a different problem. It is becoming ever harder to argue that the Verfassungsgericht will limit the ambitions of the European Court or act as the ultimate defender of judicial sovereignty, either on Germany’s behalf or implicitly on behalf of all EU states.

If the UK Supreme Court ever strikes down an EU law because it violates the fabric of the British constitution as it has recently threatened to do it cannot invoke a German precedent. The German judges have never pulled the trigger to create such a precedent, and look even less likely to do so after today. There’s only one way for us to have our own justice, wipesmilesoff


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