Resumen de Gauweiler: some institutional aspects
Advocate General Cruz Villalón recently delivered his Opinion in the Gauweiler case. It seems too early to comment on the substance, but some of the many important and fascinating institutional patterns that are revealed merit consideration now.
The background is well known. This is the first ever reference by the German Constitutional Court. It concerns the legality of the outright monetary transactions (OMT) scheme of the European Central Bank. This policy follows the Bank's President Mario Draghi's commitment to do whatever it takes to preserve the euro, and is credited with at least pausing the most acute phase of the euro crisis. The subject matter of the reference is unusually important and sensitive. The tone is also unusual. The Constitutional Court does not just ask questions but also suggests answers. In principle, this is perfectly fine, and in fact the European Court of Justice invites referring national courts to do just that in its Recommendations to national courts on the initiation of preliminary ruling proceedings. However, the Constitutional Court goes further. It makes it clear that if the Court of Justice's answers do not satisfy it, the Constitutional Court may simply follow its own views on the OMT scheme, which it considers to be a structurally significant violation of both the mandate of the European Central Bank and the prohibition of monetary financing in art.123 TFEU. The Constitutional Court does go on to suggest an interpretation of the OMT that would render it lawful, but unfortunately its preferred reading would seem to undermine gravely the effectiveness of the scheme.
