This paper analyses the European Central Bank’s (ECB) emergency measures during the Eurozone Crisis in the light of the debate between Hans Kelsen and Carl Schmitt on the nature of constitutional guardianship. It presents the debate between Kelsen and Schmitt as one concerning conflicting conceptions of political authority, constitutional law and the relationship between them. In addressing how the ECB’s emergency measures during the Crisis relate to these competing conceptions, the paper discusses how the particular form of constitutional guardianship that the ECB took upon itself in the Crisis transformed its constitutional position in the Eurozone. This transformed role highlights that the ECB’s emergency measures were not only of relevance to handling the crisis itself, but to shaping the normal functioning of the constitutional order of the Eurozone.
A growing literature is trying to explain how the European Union has tackled the Euro-crisis by using the logic of emergency powers. The intuition would be that the economic and monetary crises have made an unconventional and emergency-based mode of policymaking the new normal. But in this way, fundamental aspects of the EU constitutional order have been changed, somehow by stealth. This intervention expands on that intuition and tries to add another layer of analysis. The core argument that will be defended is the following one: the emergency-mode of doing politics has been predominant, but it has only changed fragments of the EU constitutional order. As a case study, the European Central Bank’s interventions are analysed with the intention to show that they were performed not for changing the constitutional order, but actually to protect it.
My paper argues that economic constitutionalism needs a paradigm change. Liberal economic constitutionalism is a rather recent phenomenon in Europe. Only the Maastricht Treaty introduced a new liberal constitutional paradigm into the economic constitution of the EMU, and the related Maastricht Judgment of the BVerfG instilled the expectation that courts would guard the economic constitution. The liberal constitutional paradigm reached a dead end in the Euro Crisis. The FCC managed to divert the blame for the disappointment caused by the liberal constitutional paradigm to the ECJ, the ECB, and the government. The idea of unconstitutionality therefore plays a key role in what is becoming Germany’s equivalent to the Brexit debate. Nevertheless, fully “reparliamentarizing” economic governance, including the ECB, seems unhelpful. Instead, a combination of goal definition, technocracy, political and judicial control might be more promising. It requires rethinking ECB independence, though.
Few decisions of the Court of Justice of the EU have provoked more diverse, and more critical, reactions than its three decisions on the constitutional foundations of European monetary union, Pringle, Gauweiler and Weiss. In spite of an extensive literature, there is no widely shared view on whether the European Stability Mechanism (ESM) and the ECB’s asset purchase programmes are permissible, as held by the Court. We therefore propose to test the decisions solely against the benchmarks of consistency and coherence and show that they meet neither benchmark. The article offers two tentative explanations for the failure of a court as experienced as the Court of Justice to deliver consistently and coherently reasoned judgments. The Court was constrained in its reasoning, first, by the threat of a judicial conflict with the German Federal Constitutional Court, and, second, by what can be called the incomplete and constitutionally rigid nature of monetary union.