The following contribution by Prof. Dr. Dr. h.c. Hans-Detlef Horn was published on May 27, 2021, in FAZ-Einspruch: https://www.faz.net/einspruch/exklusiv/ezb-entscheidung-was-bleibt-vom-recht-auf-demokratie-17359357.html.

What remains of the "Right to Democracy"?

One must not underestimate the previous success of the ECB proceedings before the Constitutional Court. However, with the recent enforcement decision, Karlsruhe leaves a fatal impression.

The contribution by Reinhard Müller in the print edition of the F.A.Z. from last Saturday, "No Free Pass," presumably aims to send a signal, certainly to the ECB, but perhaps also to the complainants who recently failed with their (enforcement) application to the Federal Constitutional Court to control compliance with the PSPP ruling of May 5, 2020. Nonetheless, Müller states, the ECB remains "under the supervision of Karlsruhe," and substantiated lawsuits are still possible. The signal is correct and important, particularly because many observers understandably wonder what has practically remained from the years-long "fight for rights" and the epochal ruling of the past year.

One should certainly not underestimate the success in that the ECB has now engaged in considering the proportionality of its bond purchases. In this regard, a different culture has taken hold in the ECB Council. This is not insignificant. After all, throughout the entire proceedings – and not challenged by the European Court of Justice – the ECB refused to recognize the far-reaching economic, fiscal, and social policy side effects of the PSPP as a significant criterion defining the limits of its monetary policy mandate; such collateral effects were to be processed by the member states (whose governments, regrettably, accept this with complacency). Even after the ruling of May 5, 2020, it resisted for some time to provide accountability about such a proportionality assessment.

However, now, after the decision of the Federal Constitutional Court from April 29, 2021, if the impression arises that, as Volker Wieland says, "only a long essay" is sufficient, "in which all arguments that come to mind are listed," then it is hard to disagree. For nothing else, much less a quantitative assessment and concrete decision on the proportionality of the PSPP, "delivers" the summary of the ECB Council meeting from June 3-4, 2020. However, according to the court, this is the document that mainly demonstrates that the federal government and Bundestag (with the parliamentary resolution of July 2, 2020) sufficiently fulfilled their responsibility towards integration for the ECB to act in accordance with its mandate.

The reason for this is that, according to the court, it no longer matters. It suffices that the ECB has "made the previously missing proportionality assessment" its subject. Moreover, the approval of the constitutional organs does not equate to complete inaction. However, it is "not decisive in the present context" whether this assessment meets the material requirements of Art. 5 para. 1 sentence 2 and para. 4 TEU. Just such a materially sufficient proportionality assessment had, of course, been demanded by the substantive ruling of May 5, 2020. Whether this (definitive) guideline has been fulfilled, naturally requires a subsequent constitutional evaluation. How otherwise? This does not extend beyond the substantive decision but directly concerns it and the legal obligation it pronounces.

Curtailed "Right to Democracy"

Nonetheless: The door does not seem to be completely shut but rather left ajar: for the possibility of a new constitutional complaint. However, this may only apply to the complaint that the continued state bond purchases by the ECB obviously violate the monetary financing prohibition. In this respect, the Federal Constitutional Court has only expressed concerns and set conditions. In contrast, the objection that the ECB disproportionately expands its action competence at the expense of member state policy areas is viewed differently. If one attempts to look through that crack, it becomes apparent that the way behind it leads to nothing. Here we would arrive again at the same point where we already stand:

The "Right to Democracy" in defense of constitutional identity is ultimately curtailed on the claim that the ECB and constitutional organs acknowledge the principle of limited individual empowerment and engage with it in a proportionate manner that is somehow understandable. While more substantive requirements are initially established, they are not subsequently controlled. That nothing more remains seems to be emphasized by that passage (margin number 94) in the decision from April 29, where the court oddly connects this reduced control claim to the material content of the right to democracy, which according to the doctrine of protective obligations does not extend any further in the end. The density of control expected in a new constitutional complaint procedure is therefore likely to shift at best only minimally compared to that of the enforcement proceedings.

Is the ultra vires control losing its function?

Overall, one must ask whether the increasingly differentiated, complicated, deviating case law of the Federal Constitutional Court regarding ultra vires control of EU acts since the Maastricht and Lisbon rulings is gradually losing its expected assurance function.

The question arises indeed, looking at the decision from April 15, 2021, which denied the urgent application against the enactment of the Own Resources Decision Ratification Law (from April 23, 2021). Of course, legally, there is nothing to object against the weighing of consequences, as the granting of the application would have had massive repercussions on Franco-German friendship. However, the reasoning still leaves some question marks that were not expected according to previous case law: For instance, the surprising assertion that the law does not transfer any sovereign rights in the sense of Art. 23 para. 1 GG. Or the complete omission of the ultra vires control of the underlying Own Resources Decision of the Council, with which the Union (in the amount of 750 billion euros) is empowered for the first time in its history and without treaty amendment to obtain credit financing for its tasks.

No Free Pass

In one respect, however, a parallel can be observed to the rejection of the enforcement application in the PSPP case: Here too, the rejection of the urgent application means "no free pass." EU debt remains under Karlsruhe's supervision; the main proceedings are still pending. However, as the effective legal protection of the right to democracy is kept open, it is also referred to the future, of which less and less can be said whether it holds more or less promise.

The owl of Minerva takes flight only as dusk falls. This is part of the essence of the separation of powers in a democratic constitutional state. And the possibility of going to Karlsruhe is – of course – no substitute for politics. But the fact that the court can only decide retrospectively should not become part of political calculations.

Prof. Dr. Dr. h.c. Hans-Detlef Horn is a professor of public law at the University of Marburg.
He is a legal representative in the proceedings mentioned in the text before the Federal Constitutional Court.