Abstract The relationship between the European Union (EU) and its member states has recently been the subject of several legal proceedings in the German Federal Constitutional Court (GFCC) and the European Court of Justice. The backdrop to the underlying controversies were policies instituted by the European Central Bank (ECB) dealing with the economic and monetary situation in various member states in the context of the sovereign debt crises to influence interest rates, combat deflationary tendencies and keep inflation under but close to the ECB’s 2% inflation target. Especially so-called outright monetary transactions (OMTs) and the corresponding OMT-program and a particular high volume public sector asset purchasing program (PSPP) announced by the ECB have been controversially discussed. Legally, the controversies are about the prohibition for the ECB to finance debt held by the EU or member states (Article 123 TFEU) and about the delineation of economic policy (Article 119 et seq. TFEU), which lies in the hands of the members states, and monetary policy (Article 127 et seq. TFEU), which is exclusively in the hands of the ECB. The GFCC in its decisions propagated a restrictive approach emphasizing the role of the member states and pointing to the doctrines developed by it around ultra vires acts and so-called identity review. This paper attempts to shed some light on this controversy and argues that beyond the legal controversy lies a deeper problem of the relationship between judicial and political decision-making that the GFCC should exercise restraint in exercising its functions and remember its own doctrine of “open constitutional norms” developed in a different context but applicable here as well.

中文翻译：

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欧盟和德国的经济立宪主义–德国立宪法院，欧洲法院和欧洲中央银行在法律与政治之间

摘要欧盟（EU）及其成员国之间的关系最近成为德国联邦宪法法院（GFCC）和欧洲法院的几项法律程序的主题。引发潜在争议的背景是欧洲中央银行（ECB）制定的有关主权债务危机背景下各个成员国经济和货币状况的政策，这些政策影响利率，对抗通货紧缩趋势并使通货膨胀率保持在较低水平，但仍处于关闭状态达到欧洲央行2％的通胀目标。特别是欧洲央行宣布的所谓的直接货币交易（OMT）和相应的OMT计划以及特定的大批量公共部门资产购买计划（PSPP）引起了争议。从法律上讲 争议涉及禁止欧洲央行为欧盟或成员国持有的债务融资（《欧盟条约》第123条），以及有关经济政策的划分（《欧盟条约》第119条及其后各条），这在成员国手中，货币政策（第127条及其后的TFEU），完全由欧洲央行掌握。GFCC在其决定中传播了一种限制性方法，强调成员国的作用，并指出其围绕越权行为和所谓的身份审查制定的学说。