Gauweiler and the Legality of Outright Monetary Transactions

There is an interesting symmetry in the two leading cases concerning the legality of measures to tackle the financial crisis. In Pringle the argument was that the European Stability Mechanism was unlawful, because it concerned monetary policy and hence fell outside the competence of the Member States. In Gauweiler the converse argument was deployed, the principal contention from the Bundesverfassungsgericht being that the programme for Outright Monetary Transactions concerned economic policy, and was outside the remit of the ESCB. It was central to both claims that the measures infringed either Article 123 or Article 125 TFEU, which ensured that the state remained responsible for its indebtedness, limiting the extent to which EU institutions or Member States could provide financial assistance. The CJEU rejected the argument in both cases, and this article considers the issues raised by the Gauweiler litigation.

The discussion begins with the role of the European Central Bank in the financial crisis, and the measures it adopted to restore financial balance. This is followed by analysis of the preliminary reference from the Bundesverfassungsgericht, which is set against its well-known jurisprudence on ultra vires and identity locks. The reference was especially significant given that it was the first time that the Bundesverfassungsgericht had used Article 267 TFEU.

The focus then shifts to the CJEU’s ruling, which followed much of the reasoning of Advocate General Cruz Villalón and rejected the central tenets of the Bundesverfassungsgericht’s argument. We consider in detail the CJEU’s reasoning, and juxtapose this to the Bundesverfassungsgericht’s conceptualisation of the case. The central assumptions of the two courts differed, with the CJEU conceptualising the case in terms of monetary policy transmission, while the Bundesverfassungsgericht framed its reasoning in terms of the impact of OMT on interest rate spreads. It will be argued that the CJEU’s reasoning is to be preferred and that its conclusion was legitimate in the light of the relevant Treaty provisions. The penultimate section of the article considers the Bundesverfassungsgericht’s possible response to the CJEU’s ruling. This is perforce conjecture, but it is possible nonetheless to make reasoned inquiry as to aspects of the CJEU’s ruling that the Bundesverfassungsgericht might be able to accommodate, and those that it will feel more difficult to accept. The final section of the article places this inquiry into the broader context of other judicial review actions concerning the legality of measures adopted to deal with the financial crisis.