La Banque centrale européenne et la crise des dettes souveraines : politique monétaire, politique économique ou état d’exception ?

The German Federal Constitutional Court (FCC) judgment of June 21, 2016 is the last episode of a long saga in which the FCC and the Court of Justice of the European Union (CJEU) have opposed each other regarding the European Central Bank (ECB)?s compliance with European Union law in its action during the sovereign debt crisis, and especially concerning its Outright Monetary Transactions (OMT) Program. In accordance with its role as guardian of the German constitutional legal order, the FCC implemented its jurisprudential-based ultra vires review (i.e. checking that EU institutions did not infringe their mandate attributed by the German Act of Approval of EU Treaties). In this context, the FCC referred for the first time in its history to the CJEU for a preliminary ruling concerning the ECB?s mandate (Articles 119 and 127 TFEU) and the monetary financing prohibition (Article 123 TFEU). However, this first direct jurisdictional dialogue resulted in an arm-wrestling match between the FCC and the CJEU rather than in any genuine judicial cooperation: the reference for a preliminary ruling was closer to an ultimatum and a ?pre-declaration of invalidity?; in response, the CJEU ruling, behind its apparent openness, totally rejected the FCC reasoning, declared the OMT program consistent with EU primary law, and stressed the primacy of EU law over domestic law?even constitutional?as well as the binding nature of the solutions identified in its decisions. Finally, in its decision of June 21, 2016, the FCC accepted the CJEU?s position and confirmed the conformity of the OMT Program with EU law and German constitutional law. Nevertheless, this acceptance certainly does not imply approval and endorsement and the FCC maintains ?serious objections? against the CJEU?s position, which are not, we believe, totally groundless. In spite of the arguments often developed about the irrationality of the markets on the one hand, and the state of exception (the sovereign debt crisis) on the other, it can indeed be argued, in our opinion, that the ECB?s mandate is subject to a tacit constitutional change, its OMT Program being one of the manifestations, and, consequently, that there was indeed a breach of the Treaties. These ?serious objections? expressed by the FCC therefore bespeak the persistence of a profound disagreement on the interpretation to be given to the EU primary law concerning the distinction between monetary and economic policies and the resulting distribution of powers. In this context, the legal inconsistency consisting of transferring competences to the ECB without beforehand amending the Treaties is particularly likely to lead in the near future to new jurisdictional tensions between the FCC and the CJEU.