Bring Back the Politics: The PSPP Ruling in Its Institutional Context

Abstract In this paper, I argue that the conflict between the German Federal Constitutional Court and the Court of Justice of the European Union is the story of a clash foretold, if one takes seriously constitutional courts as institutions designed to be “dogs that bite.” The German Court consistently developed a doctrinal tool to guide its role as guardian of the national constitutional order and the democratic principle, and enforced it when the constitutional control of monetary policy measures so required. I analyze the PSPP ruling, focusing on where the Court concluded that the lack of a satisfactory statement of reasons by the European Central Bank prevented it from reviewing the proportionality of the program. I argue that the Court, after conducting a substantive assessment, applied a weak remedy, thereby deferring the last word on the constitutionality of the PSPP to the political branches. In doing so, the Court opens space for the political assessment of a controversial monetary policy, enhancing the politicization of the Economic and Monetary Union, and provides a doctrinal toolbox for national constitutional courts that face competence creep of EU law in their jurisdictions. I conclude that, ultimately, the main merit of constitutional courts’ interventions in the EU integration is that they are in a privileged position to allow for the politicization of technocratic processes.