Pereat Iustitia, Fiat Mundus: What is Left of the European Economic Constitution after the OMT-Litigation?

20 Pages Posted: 18 Nov 2015

See all articles by Christian Joerges

Christian Joerges

University of Bremen - Faculty of Law; Hertie School of Governance

Date Written: November 17, 2015

Abstract

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?

Keywords: OMT Reference of the German Constitutional Court; Gauweiler judgment of the CJEU; European Monetary Policy; national fiscal policy; Economic and Monetary Union; Economic Emergency; Europe, contestation and normalisation

JEL Classification: A14, B25, E58

Suggested Citation

Joerges, Christian, Pereat Iustitia, Fiat Mundus: What is Left of the European Economic Constitution after the OMT-Litigation? (November 17, 2015). ZenTra Working Paper in Transnational Studies No. 60 / 2015. Available at SSRN: https://ssrn.com/abstract=2691929

Christian Joerges (Contact Author)

University of Bremen - Faculty of Law ( email )

PO Box 330440
Bremen, 28334
Germany

Hertie School of Governance ( email )

Friedrichstraße 180
Berlin, 10117
Germany

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