The EU Commission has today initiated an infringement procedure against the Federal Republic of Germany. In doing so, it raises the ultimate legal and power question in the EU. Because national constitutional courts should be deprived of the opportunity to intervene against intrusive behavior by EU institutions, at least when the so-called "core identity" of their national constitution is violated.

What has motivated the EU to make this provocative decision is beyond our understanding. However, it is clear that self-confident member states, that value their sovereignty, will hear all alarm bells ringing. Anyone who does not want to sink to the level of a subordinate state cannot leave the Commission's decision today unchallenged. With this, the Commission feeds new and hard-to-meaningfully conflicts at a time when it should really have other priorities.

Is EU law superior to national law?

At its core, this is about the following: The EU has arisen from international treaties between sovereign nation states. Thus, the EU is not an institution that arises out of itself but derives its legitimacy from the will of its founders.

For many years now, however, the EU has disputed exactly that. In particular, the European Court of Justice (ECJ) developed the principle that EU law generally takes precedence over national law, so that the case law of the ECJ is binding for all national courts.

This dominance of EU law is generally accepted by the member states. It is even accepted where constitutional provisions and provisions on fundamental rights are "overlaid" by EU law. A prominent example is the fundamental right to political asylum under Article 16a of the Basic Law. Since the EU has established its own asylum law in the so-called Dublin regulations, the much more generous Dublin regulations are decisive in Germany – not the Basic Law.

The infringement procedure against Germany threatens the "core identity" of the German Basic Law

The Federal Constitutional Court also accepts this precedence of EU law – with one final reservation: It disputes the precedence of EU law where the so-called "core identity" of the Basic Law would be violated. This core identity particularly includes human dignity (Article 1 GG), the principle of democracy, the principle of the welfare state, and federal order (all Article 20 GG). Because for Articles 1 and 20 GG, the so-called "eternity guarantee" of the Basic Law established in Article 79, paragraph 3 applies: Even the Bundestag and Bundesrat may not change these constitutional principles. Thus, the Federal Constitutional Court concludes that there is an inalienable core identity of the German state that cannot be left to the discretion of EU organs.

This core identity includes the principle of democracy. Therefore, the EU is only allowed to do what has been democratically decided by the German legislature. The EU thus has no power to define its own tasks or enact laws that are not derived from the democratic will of the member states.   

The ruling of the BVerfG against the ECB's government bond purchases is the reason for the procedure 

Last year, the Federal Constitutional Court ruled that the ECB's government bond purchases exceeded the democratically mandated mandate of the ECB. Because an EU institution acted outside its granted competencies, the Federal Constitutional Court recognized a violation of the core identity of the Basic Law. This also applied to the previous ruling of the ECJ, which had declared the bond purchases lawful without examining the issue of exceeding mandates more closely. The Commission is now using this "disregard" for the case law of the ECJ as grounds for an infringement procedure against Germany.

If this procedure succeeds (and if the national constitutional courts submit to it), then the national constitutional courts will no longer be able to protect the core identity of their constitutions. The interpretation of European law would then be solely subject to the ECJ, for whom all national constitutional provisions would be irrelevant. The EU would then have truly become autonomous and would legitimize all its legal acts from within itself. All these legal acts would have binding effect for all member states, but could no longer be examined by their courts as to whether they at least align with the most fundamental constitutional principles.

That is why it was initially described that this is the ultimate legal and power question in the EU. The Commission is putting the lever on the foundations of the Union. The member states will hardly want to submit to the absolute claim to supremacy of the Union. With this, the Commission provokes a constitutional crisis in Europe like we have never experienced before. Until now, the problem of who has the final say in legal matters in Europe has been left open and entrusted to cooperative communication between the ECJ and the national constitutional courts. This now seems to be coming to an end.

Revelation just before the Bundestag election: Will the Federal Government defend our Basic Law?

The outcome of the infringement procedure is presumably open. First, the Federal Government must now take a position. One can at least find something positive in this: The deadline has been set at two months, meaning the Federal Government must state amidst the Bundestag election campaign whether the Federal Constitutional Court is rightly defending the core identity of the Basic Law: Yes or No. Much better than if a new (and possibly entirely differently constituted) Federal Government would be able to handle this task after the election.

There is little we can do about it – except that each of us should try, to the best of our abilities, to inform about this outrageous procedure and to influence public opinion – as difficult as it may be with such a delicate topic. Because it is important!