German court ruling mortal threat to EU


Sir, – My good friend and former pupil, Senator Michael McDowell, writes strongly in support of the judgment of May 5th of the German federal constitutional court, which, he says, called for the €2 trillion stimulus package launched by the European Central Bank to be proportionate to its monetary policy objectives (“Ireland should be slow to condemn Karlsruhe”, Opinion & Analysis, May 20th). It did much more.

Mr McDowell labels criticism of the judgment, not identified in the article, as “hysterical”.

Prof Ronan McCrea, also a friend, in your newspaper last week, describes the German court’s ruling as a “mortal threat to the EU as we know it” (“German constitutional court is a bigger threat to EU than Brexit or Covid-19”, Opinion & Analysis, May 16th). I do not know whether that contribution is to be qualified as “hysterical.” I trust the following is not.

In this respect, the decision of the German court flies directly in the face of jurisprudence which has been universally accepted, including by the German courts, since the foundation decision of the European Court of Justice in the case of Van Gend en Loos in 1963. There the court held that the European Community, as it then was, comprised “a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals.”

This iconic judgment has stood for almost 60 years.

Senator McDowell ignores this issue. He treats the European Court as “a treaty tribunal not competent to autonomously determine its own jurisdiction or competence in a way binding on parties to those treaties”.

Prof McCrea explains the relationship correctly and in clear terms: “While enforcement of most treaties needs government action and voluntary co-operation with any international ruling that the treaty has been violated, EU rules can be enforced by individuals in their local courts. This makes EU rules part of everyday life in a way that, for example, World Trade Organisation rules are not.”

The jurisdiction of the European Court of Justice to give preliminary rulings on questions of interpretation referred to them by the courts of member states has been consistently described and accepted as the “cornerstone” of EU law. It would be a pointless exercise in futility to confer such a jurisdiction on the European Court if its rulings were not to be treated as binding. The national court would refer a question to the European Court of Justice for preliminary ruling but would be free to accept or reject it at its will.

If any court of one member state is free to reject a decision on a reference for preliminary ruling which it has made to the European Court of Justice, why should not the same apply to the courts of any other member state? Such a result would strike at the root of the very structure which has enabled European Union law to be established and to develop.

For these reasons, Prof McCrea is right to describe the decision of the German Court as “a mortal threat to the EU as we know it.” – Yours, etc,


(Former member

of the Supreme Court

2000 to 2014,

Former Advocate General

at the European Court

of Justice),

Dublin 4.