Pereat Iustitia, Fiat Mundus: What is Left of the European Economic Constitution after the OMT-Litigation?
What kind of law are Germany’s Constitutional Court and the CJEU concerned with when they decide upon European and national powers in the realms of monetary, economic and fiscal policy? Is it still possible to identify some meta-legal conceptual basis for the ordering functions attributed to law in these fields? It seems that Europe’s responses to the financial crisis have no theoretical foundation, neither in some variety of economic liberalism, nor in some Keynesian counter-vision. Do we really have to leave it to ECB to define the notion of monetary policy and to then develop and use instruments to implement its decisions? With these queries, we do not insinuate that this lack of conceptual orientation can be attributed to some wilful disregard of well-founded legal commands. Instead, we submit that Europe is exposed to a state of emergency which has led to the restless search for new modes of crisis management which damage the integrity of law. Were the two dissenting judges of the 2nd Senate of the German Constitutional Court right with their suggestion that the Bundesverfassungsgericht (BVerfG) should dismiss the complaints of Peter Gauweiler and Others? Did their non possumus respect the law’s limits and therefore the law’s integrity? Or did instead the CJEU act as a good guardian of European constitutionalism through its de facto unconditioned legalisation of executive federalism?
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