The OMT case and the demise of the pluralist movement

A few days ago I participated in a conference organized by iCourts, the Center of Excellence for International Courts, at the Faculty of Law of the University of Copenhagen, hosted by its really friendly staff, and headed on this occasion by Federico Fabbrini, one of the brightest young legal minds working on EU Law at the moment. The topic of the conference was “The European Court of Justice, the European Central Bank, and the Supremacy of EU Law”, and it gathered a group of varied and very motivated academics, including, inter alia, Monica Claes, Dan Kelleman, Takis Tridimas, Christian Joerges, Antoine Vauchez and Jean-Victor Louis, joined in by high-profiled officials like Chiara Zilioli, head legal counsel at the ECB, and several judges from supreme and constitutional courts of the EU.

It was the very, very first time in many years that I attend a conference and come out of it with “a message”. I might be wrong, but after two days of intense discussions, I went back home with one clear idea in my mind: the pluralist movement is in retreat. It was nice while it lasted, but the pluralist party is over. The movement that tried to justify and articulate in theoretical terms the notion of heterarchical legal orders, where the question of the “ultimate decision” was to become irrelevant and constitutional and european judges were to dialogue in a common search for the locus of legitimacy in EU Law, has dramatically crashed against the wall of reality.

The OMT case, the first preliminary reference ever made by the German Constitutional Court, might be at the heart of it.

During two days of discussions in Copenhaguen, one thing seemed quite clear: pluralism is unable to offer a normative solution to situations of conflict between courts, but what is even worse: it is also unable to provide a proper description of how current events are taking place in Europe. Before the economic crisis, constitutional courts were happy to challenge their Luxembourg counterpart and defy its role as ultimate interpreter of EU Law. Pluralism provided a nice theoretical backdrop to the developments taking place, for example, during the EAW saga, where the Polish, German, Cypriot and Belgian Constitutional and Supreme Courts engaged in a lively debate about the constitutional limits of EU Law. It was fascinating as it was also harmless: questioning the european arrest warrant would not destroy the EU, as neither would it undermine (not severely, at least) the authority of the Court of Justice. The same applied to those very principled decisions from Constitutional Courts deciding on the constitutionality of reform Treaties, imposing strict conditions but, in the end, green-lighting their ratification by Parliament. Pluralism was an intellectual feast for lawyers, political scientists and political philosophers, a feast with no victims, with no losers, with no blood spilled over the floor.

And then the euro-crisis arrived and the party came to an end. It came to an end in descriptive terms, because, out of the blue, Constitutional and Supreme Courts became very much concerned about the consequences of their decisions. To play the pluralist game in a deeply troubled Member State could cost the State, undertakings and families quite a lot of money. Playing pluralism suddenly became a high-risk game and many national jurisdictions decided that it was time for obedience. Not many constitutional challenges to the authority of EU Law (nor international law, for that matter) can be found in the case-law of most Constitutional and Supreme courts of the so-called “rescued countries”. With the exception of a few decisions of the Portuguese Constitutional Court, the other courts decided to put pluralism to rest.

A very similar narrative can be found on the other side of the economic spectrum: in the creditor Member States, there are hardly any major challenging rulings coming from the courts. The closest thing to such a challenge were the German Constitutional Court’s judgments in the Greek rescue program and the ESM cases, but the objections were easily overridden with minor reforms. Both in the north and in the south, pluralism was not a proper account of how events were taking place. In the midst of a dramatic economic and political crisis, surely some pluralist courts had something to say about the unfolding of events. But, to surprise to the many, they did not.

The descriptive side of pluralism had suddenly collapsed. Pluralism was no longer able to explain the way in which Constitutional and Supreme Courts dealt with the authority of EU Law. Agreements entered by Member States in the European Council, in the Eurogroup, the actions of the troika, etc., seemed untouchable for national courts that had been much more concerned in the past about much more irrelevant EU acts.

And then the OMT case arrived. After years of certain moderation, the German Constitutional Court decided to put its pluralist hat on once again and claim its power to be the ultimate interpreter of EU and national law in Germany. It simply did what it had been doing for many decades, but the timing and the subject matter was very different.

By challenging before the Court of Justice the very key measure of the ECB that had, according to all experts in the field, brought stability to the eurozone, pluralism was back in the game, but with a force and consequences much more destructive than ever seen in the past. A decision of the German Constitutional Court declaring the illegality of the ECB’s OMT programme would probably entail such financial and political turmoil, as well as such institutional consequences for the ECB, that the risk of dissolution of the common currency, and maybe the Union itself, appeared for the very first time quite real. And suddenly pluralism, which seemed like a civilized and decent tool for making civilized judges coexist together, appeared to be as destructive and deathly as enriched uranium, ready to implode in the very heart of Europe.

It is still too soon to assert that such a risk has been averted. The Court of Justice has rendered a very reasonable decision in the OMT case, but we are all still awaiting the final judgment of the German Constitutional Court. We should not discard a destructive decision from Karlsruhe, but it is likely that its final judgment will eventually avoid mass destruction. However, when discussing OMT in Copenhaguen, nobody sided with the German Constitutional Court’s actions in the course of the OMT case and, above all, nobody sided with pluralism in general.

Academics that seemed quite comfortable with the pluralist narrative now seem quite uncomfortable with it (including myself). Judges who had reasons to side with the German Constitutional Court’s Maastricht case-law, now appear to have no appetite at all for such kind of discourse. EU officials who respected with a certain resignation the discourse of national constitutional identity now feel the need to speak openly about the dangers of such narrative. Overall, the tide has quickly turned against the descriptive account of pluralism, but also against its normative dimension.

I may be wrong. But if I am not, we could be witnessing our Constitutional Court’s last attempts to remain and act as ultimate interpreters of EU Law. They tried hard, they managed to keep our attention for quite some time, but now reality has kicked in and nobody seems to be listening. Pluralism was nice in the nineties and 2000’s, but now, in the midst of the worse economic and political crisis the EU has gone through, it might seem too dangerous to play with. It all looks, indeed, as if the demise of the pluralist movement has begun to unfold.

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