The BVerfG's Proportionality Review in the PSPP Judgment and its Link to Ultra Vires and Constitutional Core: Solange Babel's Tower Has Not Been Finalised
14 Pages Posted: 16 Jul 2020
Date Written: June 15, 2020
This is a short note on the German Bundesverfassungsgericht’s (BVerfG) PSPP judgment. In it the BVerfG for the first time has openly revolted against a judgment by the European Court of Justice (ECJ) after having received an answer to its preliminary reference. The BVerfG found that the ECJ had acted ultra vires and criticised the ECJ’s proportionality review of the ECB’s Public Sector Purchase Programme (PSPP).
The focus of this short note focuses on judgment’s findings of an ultra vires act and proportionality review by the ECJ. The paper briefly summarizes the relevant parts of the judgment, also highlighting some possible ‘mis-translations’ in the English translation of the judgment. The paper, then, presents three commonly advanced critiques of the judgment’s proportionality analysis and places proportionality as applied in the judgment into its broader context focusing on the problem of translating concepts (the Babel Tower problem) and the challenges that the judgment presents for independent EU institutions with reduced democratic accountability.
Keywords: Proportionality, Constitutional Pluralism, Judicial Dialogue, Constitutional Courts, European Court of Justice, Bundesverfassungsgericht, Ultra Vires
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