Karlsruhe über alles? Riflessioni a margine di una pronunzia “assolutamente non comprensibile” e “arbitraria” (commento a BVerfG 05.05.2020, 2 BvR 859/15, Weiss)

The judgment of 5 May 2020 of the Zweiter Senat of the Bundesverfassungsgericht is manifestly inappropriate from a legal point of view as it expresses the German constitutional judge’s claim to assess the legality of the ECB’s decisions and the correctness of reasoning of the CJEU in Weiss. The German judges are using the principle of proportionality to assess the correct application of the principle of conferral in a way that is “simply completely unintelligible and thus objectively arbitrary” — to use their own qualification of the CJEU’s reasoning. Furthermore, the judges make a very questionable use of the principle of democracy and of economic analysis in assessing the correctness of the ECB’s PSPP program. The judgement is extremely dangerous by ultimately questioning the application of EU law in a Member State and it encourages other courts and Member States’ governments to do the same. The German judges’ reasoning is the glaring demonstration of a form of “cultural dominance” which particularly emerges in the reasoning carried out on proportionality.