EUROPE´S IMPERIAL COURT IS THREAT TO ALL OUR DEMOCRACIES / THE TELEGRAPH

Europe's imperial court is a threat to all our democracies

The European Court of Justice has this time departed a long way from the rule of the law, even by its own elastic standards

By Ambrose Evans-Pritchard

7:12PM GMT 14 Jan 2015

The political destiny of Europe should not be decided in this fashion, lurching from crisis to crisis towards a sovereign union that no citizen has ever voted for Photo: Reuters

 

 

The European Court of Justice has declared legal supremacy over the sovereign state of Germany, and therefore of Britain, France, Denmark and Poland as well. 

 

The ECJ's advocate-general has not only brushed aside the careful findings of the German constitutional court on a matter of highest importance, he has gone so far as to claim that Germany is obliged to submit to the final decision. "We cannot possibly accept this and they know it," said one German jurist close to the case.
 

The matter at hand is whether the European Central Bank broke the law with its back-stop plan for Italian and Spanish debt (OMT) in 2012. The teleological ECJ - always eager to further the cause of EU integration - did come up with the politically-correct answer as expected. The ECB is in the clear.

The opinion is a green light for quantitative easing next week, legally never in doubt.
 

The European Court did defer to the Verfassungsgericht in Karlsruhe on a few points. The ECB must not get mixed up with the EU bail-out fund (ESM) or take part in Troika rescue operations. But these details are not the deeper import of the case.
 

The opinion is a vaulting assertion of EU primacy. If the Karlsruhe accepts this, the implication is that Germany will no longer be a fully self-governing sovereign state.
 

The advocate-general knows he is risking a showdown but views this fight as unavoidable. "It seems to me an all but impossible task to preserve this Union, as we know it today, if it is to be made subject to an absolute reservation, ill-defined and virtually at the discretion of each of the Member States," he said.

In this he is right. "This Union" - meaning the Union to which EU integrationists aspire - is currently blocked by the German court, the last safeguard of our nation states against encroachment. This is why the battle is historic.
 
"His opinion is a direct affront to the German court. It asserts that the EU court has the final say in defining and creating the EU's own powers, without any national check," said Gunnar Beck, a German legal theorist at the University of London.

"This would be a fundamental transformation of the EU from a treaty organisation, which depends on the democratic assent of the sovereign states, into a supranational entity."

Germany's judges have never accepted the ECJ's outlandish claims to primacy. Their ruling on the Maastricht Treaty in 1993 warned in thunderous terms that the court reserves the right to strike down any EU law that breaches the German Grundgesetz or Basic Law.

They went further in their verdict on the Lisbon Treaty in July 2009, shooting down imperial conceits. The EU is merely a treaty club. The historic states are the “masters of the Treaties” and not the other way round.

They set limits to EU integration. Whole areas of policy “must forever remain German”. If the drift of EU affairs erodes German democracy - including the Bundestag's fiscal sovereignty - the country must “refuse further participation in the European Union”.

The opinion of the ECJ's advocate-general is not binding. But he works alongside the judges in the same building on the Kirchberg Plateau and it is fair to assume that he is cleaving closely to the court's outlook in such a pivotal case.
 
In a free speech case that I once covered - Connolly v Commission (C-274/99 P) - another advocate-general suggested that criticism of the EU is akin to "blasphemy" and may legitimately be suppressed. His musings on blasphemy did not reach the final judgment, but everything else did.

The European Court has this time departed a long way from the rule of the law, even by its own elastic standards. The opinion contradicts previous ECJ case law in the 2012 Pringle case, when the court ruled that the ECB's purchases of government bonds amount to economic policy, and implies fiscal union by the back door.

It gives the ECB almost unfettered discretion, adding for good measure that the courts should refrain from meddling in monetary policy. Not only is this an attempt to tie the hands of the Verfassungsgericht when the inevitable case against QE is filed, it is also enthrones the ECB over a monetary dictatorship answerable to nobody.

From a strictly economic view, my sympathies lie with the advocate-general and the ECB's Mario Draghi. The eurozone needs QE a l'outrance to avert a deflation trap. It also needs the OMT to reassure markets that there is a lender-of-last-resort in case a crisis erupts in Greece and sets off contagion. But the political destiny of Europe should not be decided in this fashion, lurching from crisis to crisis towards a sovereign union that no citizen has ever voted for.
   
The difficulty for the ECJ is that Verfassungsgericht ruled a year ago that Mr Draghi's OMT "manifestly violates" the Treaties and was most likely "Ultra Vires", creating "an obligation of German authorities to refrain from implementing it”.
 
Germany's judges said OMT “infringes the powers of the Member States, and violates the prohibition of monetary financing of the budget”. In short, the ruling was ferocious.
 
The Verfassungsgericht did not refer the case to the ECJ for superior guidance. It pre-judged the case and sent it to the ECJ for ratification.

The advocate-general acknowledged that the German court's referral was double-edged, and almost treats the ECJ as a mere think-tank. He protested that no national court should be allowed to request a ruling from the ECJ while also refusing to give up its "own ultimate responsibility to state what the law is".
 
"Therein lies all the ambiguity with which the Court of Justice is faced. In such circumstances, a request to the Court of Justice to give a preliminary ruling could even end by having the undesirable effect of embroiling the Court in the chain of events ultimately leading to the breakdown in the ‘constitutional compact’ underlying European integration," he said.

That is the heart of the matter. The ECJ has been drawn into a dangerous dispute with the very powerful court of Europe's most powerful country. It has done so on the weakest possible terrain, failing to address fully the objections raised by Karlsruhe.

It claims that OMT is a monetary policy tool that does not breach the Treaties by rescuing specific insolvent states, when everybody can see that it does. Instead of pushing its claims on an abstruse case - the usual salami tactic - it is fighting over an incendiary issue that has German eurosceptics up in arms.
 
It is far from clear what will happen when the case goes back to Karlsruhe for a final ruling.

The Verfassungsgericht may capitulate, but you never know. "In extremis, the court may prohibit German institutions from taking part in bond purchases," said the Frankfurter Allgemeine.

This is the Investiture Contest of our times, echoing the 11th century clash between the German emperor Henry IV and the imperial papacy of Gregory VII over supremacy in Europe.
 
Gregory choose to challenge the settled dominance of secular princes, angling for an absolutist and unworkable theocracy. He won a Pyrrhic victory when Henry prostrated himself in the snow at Canossa, but only to stir up forces that he could not control.
 
It was Henry who conquered Rome. It was a deposed Pope Gregory who died in exile.