On-going judicial dialogue and the powers of the ECB: Weiss

Abstract

On the 11 December 2018, the Court of Justice of the EU delivered its preliminary ruling in Weiss, on the legality of the ECB’s Public Sector Purchase Programme. The matter had been referred by the German Federal Constitutional Court; this was the second reference ever made by this particular national court, after the landmark case of Gauweiler. And just like Gauweiler before it, Weiss concerns the powers of the European Central Bank and, more broadly, the conflict between different interpretations of the constitutional principles underlying the EU’s Economic and Monetary Union.

Weiss should be seen as a further instalment in an on-going dialogue — between the CJEU and the BVerfG — that concerns the evolving powers of the ECB and, more generally, the structural changes to EMU that have taken place since the euro area crisis. This short commentary seeks to place the decision in Weiss against this background. It starts by discussing the changing role of the ECB in recent years, and associated concerns regarding its legitimacy and accountability (Section II). Said concerns regarding the growing powers of the ECB crystallised in the Gauweiler saga, which is be discussed briefly in Section III. Section IV focuses on the reasoning and decision of the Court of Justice in the subsequent case of Weiss. Section V provides some final critical reflections on the conflicting approaches adopted by the Court of Justice of the EU and the German Federal Constitutional Court, as well as the general context in which this dialogue unfolds.