German Judges May Share U.K.'s Unease With European Union Court

(Bloomberg) -- It’s not just U.K. Prime Minister Theresa May who is bristling at the European Union Court of Justice. Germany’s top judges, of all people, have been threatening to sidestep some of its rulings.

The Federal Constitutional Court, the country’s highest tribunal, said in a ruling published last week that it has a duty to ignore the ECJ in Luxembourg in some situations. In a case involving the European Central Bank, the German judges said they must deviate from ECJ decisions when the EU top court fails to stop agencies in the bloc that "blatantly" misread their powers.

The judgment is the latest in a string of cases brought by fierce opponents of EU integration who attacked the Maastricht Treaty, euro rescue programs and the Greek bailouts. While the Constitutional Court always rejected the suits, the judgments effectively questioned the ECJ’s role amid perceived EU shortcomings, including a lack of democratic checks and balances, a theme that should be familiar to Brexiteers.

The German and the British complaints may differ, but the sentiments have similar roots, said Christian Pestalozza, a professor emeritus at Berlin’s Free University. The ECJ is often perceived as interfering in national affairs.

‘Bitter Pill’

"Sovereign nations really don’t like that very much, and to a certain extent that is understandable," he said. "But in a system like the EU there’s no way around it. You have to swallow the bitter pill."

While Germany has always been a staunch supporter of the EU, about a dozen Constitutional Court rulings on the country’s role in the bloc have exposed a spat between the German and EU top courts. Many of the most recent cases involved the euro rescue and the ECB’s bond-buyer program -- highly unpopular among Germans who fear they will have to pay the bill. The judgments reflect an uneasiness about the EU among the public at large, said Joachim Wieland, a law professor at the University of Administrative Sciences.

"Back in the 1980s, the Constitutional Court was very EU-friendly. But the more doubts the Germans developed about the EU, the more critical the court became," said Wieland. “Judges are also citizens, they do join these discussions and that influences their view of the law."

The German court has said it would act if EU agencies stretch their powers beyond what the treaties authorize, encroaching on member states’ rights. It’s also said it could intervene in if the EU ever usurps Germany’s sovereignty over its own budget.

‘Egregious’ Cases

When the ECJ turns a blind eye in "egregious" cases, the German court has reserved -- but never exercised -- the right to deviate from a Luxembourg ruling.

The issue came to a head when a 2015 judgment on a ECB bond-buying program didn’t attach all the strings the German court had called for. In last week’s case, the German justices sent a request to Luxembourg for limits on the ECB’s quantitative-easing policy, arguing that without them, it may turn to the weapon of last resort.
 
U.K. citizens turned their unease into a vote to leave the EU altogether -- and the role of the ECJ was a major part of that discussion. In a position paper published Wednesday, however, the U.K. retreated from rhetoric about ending the court’s jurisdiction over Britain. It now suggests it will be open to monitoring EU case law, abiding by past ECJ rulings and taking future decisions into account.

Despite the common concerns about the ECJ, Germans say they don’t quite understand the British complaints. Peter Bert, a lawyer at Taylor Wessing in Frankfurt, attributes them to confusion between the Luxembourg judges and the Strasbourg, France-based European Court of Human Rights, a non EU-panel that has frequently blocked British efforts to deport suspected terrorists. 

The situation is very different "from the viewpoint of some German conservatives who loath the EU top court because of its position on EU integration, especially on the euro rescue issue and the policy of the ECB," said Bert, whose law firm was formed by the merger of English and German law firms. "The Brits aren’t in the euro zone, so it’s hard to understand where the dislike comes from." 

To contact the reporter on this story: Karin Matussek in Berlin at kmatussek@bloomberg.net.

To contact the editors responsible for this story: Anthony Aarons at aaarons@bloomberg.net, Eddie Buckle