Decision of the German Federal Constitutional Court: Constitutional Complaints against PSPP

The German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) assesses the bond purchases of the European Central Bank (ECB) and instructs the ECB to examine the proportionality of its decisions more closely.

The Federal Constitutional Court had to rule on constitutional complaints against the Public Sector Purchase Programme (PSPP). The result can be summarised as follows: In the opinion of the Court, the ECB must take the actual effects into account when conducting the proportionality test and make an evaluative overall assessment. The ECB must do this in the forthcoming months, and Germany must insist on this.

The aim of the bond purchase programme launched is to promote consumption and investment and at the same time inflation by increasing the money supply. The ECB purchases government bonds and similar marketable debt instruments issued by the central government of a Euro Member State, "recognised institutions", international organisations and multilateral development banks based in the Euro area. The bond purchase programme is part of a general asset purchase programme and accounts for the bulk of the purchases.

The Federal Constitutional Court criticises not only the European Central Bank but all those involved and especially the "supervisors". The most stringent accusation is directed at the ECB: The European Central Bank had neither examined nor demonstrated in the decisions adopted for the introduction and implementation of the PSPP that the measures taken in this regard were proportionate. The German federal bodies do not come off any better: The Federal Government (Bundesregierung) and the Federal Parliament (Bundestag) should have recognised the failure to present and examine and taken action against it. This further accusation addressed to the federal bodies allows the Federal Constitutional Court to establish a violation of Article 38.1 sentence 1 in conjunction with Article 20.1 and 20.2 in conjunction with Article 79.3 of the German Constitution (Grundgesetz, GG).

How does the Federal Constitutional Court circumvent the judgment of the Luxembourg colleagues on the Governing Council's decisions concerning the programme and its amendments? The Court remains in line with its previous case-law and judges the ECB decisions as exceeding its powers.

In very clear terms, the ECJ is accused of having disregarded the actual effects in the proportionality test and of having failed to take an overall evaluative view, contrary to the methodological approach of the Court of Justice in almost all other areas of the Union's legal system. The violation of the principle of proportionality had to be taken into account for the allocation of competences.

Dr. Rainer Bierwagen

Dr. Dietmar O. Reich

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