German court ruling could tear EU apart, warns senior judge

President of EU’s General Court fears a ‘disguised exit’ by some EU countries as a result of the judgment.

A senior EU judge has expressed his “deep concern” about a recent landmark ruling by the German Constitutional Court and warned that it risks dismantling rule of law in the EU and potentially even the bloc itself.

In an unusual public statement, shared with POLITICO, Marc van der Woude, president of the General Court of the EU, the bloc’s second-highest court, described last month’s ruling by the German Constitutional Court as “direct interference in the functioning of the European legal order,” and warned that it could encourage some countries to leave this legal order and thereby perform a “disguised exit” from the EU.

On May 5, the German court ruled that a 2015 bond-buying program by the European Central Bank (ECB) would be illegal under German law unless the ECB can provide adequate justification within the next three months. The decision has been widely interpreted as challenging the independence of the bloc’s highest legal authority, the Court of Justice of the EU, which had permitted the bond-buying program.

By saying that the Luxembourg-based EU court had acted in a “not comprehensible” way and “ultra vires,” or beyond its authority, the German judges delivered a withering assessment of their European counterparts. As a consequence, European Commission President Ursula von der Leyen said she is considering launching an infringement procedure against Germany.

In his remarks, van der Woude described the German ruling as a danger to the EU’s “fragile and delicate” legal order and warned that it would “erode the bonds of trust between all courts of the EU and undermine the rule of law on which the European Union is based.”

Van der Woude wrote that the German judgment, “although handed down in the name of the rule of law, could paradoxically reinforce the second even more worrying trend, which is the dismantling of the rule of law in certain member states” — a veiled reference to Hungary and Poland.

He warned that “taken to the extreme, the logic of the constitutional court could mean that each national court would be able to assert its own vision as to how European law should be applied, whether by European or national institutions.” This could be misused by states in which “the political majorities are slowly but surely placing their courts under the tutelage of the executive.”

Van der Woude argued that such a process could lead to serious political consequences: “If the rule of European law no longer applies in these countries, they will be outside the EU’s legal order and will de facto withdraw from the common project.”

“Ultimately, some may wonder whether this is a disguised exit from the EU without formal application of the withdrawal clause provided for under Article 50 of the Treaty on European Union,” he added in reference to the U.K.’s withdrawal from the EU using Article 50.

The top judge concluded his remarks with a plea for dialogue: “If [the EU] is to continue to gain the sovereignty that none of its member states could acquire on their own, dialogue and consensus-seeking are essential.”

“Here, again, the treaties provide the necessary means of redress by allowing any court or tribunal to refer new questions to the Court of Justice for a preliminary ruling until the dialogue leads to a mutually acceptable solution that respects the common good.”