Responsible judges or judging responsibilities? EU Court of Justice, Bundesverfassungsgericht and EU economic governance

ABSTRACT

The EU's response to the COVID-19 pandemic has renewed discussions on whether the gap between responsibility and responsiveness is, to some extent, constructed. This discussion only partly applies to courts, which are important in interpreting EU crisis responses. While judges do not rule in a political vacuum, it is not their main task to please public opinion. Even if they were to be influenced by changes in public mood, judges have little incentives to claim responsiveness in their judgments. By contrast, higher courts may be considered the epitome of responsibility since they are themselves bound by the law and entrusted to decide on conflicting responsibility claims of other actors. Hence, we ask how different courts interpret responsibility – their own and that of others – during the Eurozone and the COVID-19 crises. We conduct a comparative analysis of responsibility claims in the jurisprudence of the EU Court of Justice (CoJ) and the German Federal Constitutional Court (FCC) at two crucial crisis moments. We find little evidence of judges claiming responsiveness, but important differences in the constructions of responsibility between the two courts and across crises. The gap between how the courts construct their shared responsibilities in EU economic governance has seemingly narrowed.

KEYWORDS:

• Court of Justice of the EU
• German Federal Constitutional Court
• EU economic governance
• responsiveness
• responsibility

Introduction

The European Union (EU) responded to both the Eurozone crisis and the COVID-19 pandemic in order to shield the European economy from negative effects. On both these occasions, the EU and its Member States agreed on measures that were unprecedented and whose legality was challenged by some. As a consequence, EU and national courts had to rule on the legality of these measures. Next to the EU Court of Justice (CoJ) as the ultimate interpreter of EU law, the German Federal Constitutional Court (FCC) has played a particularly important role in this process as it turned into the most adamant defendant of a restrained interpretation of the EU Treaties and went as far as refusing the interpretation provided by the CoJ.

In this article, we analyse these different legal interpretations from the perspective of competing responsibility claims. As is set out in the introduction to this Special Issue, the comparison of EU responses to the Eurozone and the COVID-19 crises promises to shed new light on the responsibility-responsiveness dilemma often deplored in EU economic governance (see Editors, Introduction, this issue). While we share the constructivist approach informing the Special Issue and, hence, the interest in the reconstruction of EU economic governance during the COVID-19 pandemic, our focus on courts requires a reformulation of the initial puzzle. Being responsive to public opinion is not the main task of courts, arguably even less so in times of crisis. Emergency situations tend to shift the balance towards responsibility concerns and urgent executive action to combat the crisis under conditions of high uncertainty and risk, oftentimes (temporarily) weakening established parliamentary procedures that ensure responsiveness (e.g., Bolleyer & Salát, 2021; Puntscher-Riekmann & Wydra, 2013; Schmidt, 2022). What is more, as independent ‘guardians of legality’ judges also have little incentive to claim responsiveness in their jurisprudence.

By contrast, by interpreting the law in cases of conflict, courts offer competing reconstructions of responsibility – both regarding their own responsibility as well as by reminding political actors of their responsibilities, e.g., in terms of constitutional constraints and obligations arising from international legal commitments. Our focus is, therefore, not on the gap between responsiveness and responsibility, but rather on the gap between different interpretations of responsibility. In doing so, we make a threefold contribution. First, focusing on responsibility constructions by the courts contributes to the literature on crisis management and emergency politics in the EU because it highlights how judges juggle own legal responsibilities, responsibilities of other political institutions, and political constraints under conditions of urgency and uncertainty. Second, comparing the responsibility constructions of the two courts allows us to uncover differences and similarities in legal reasoning in the EU’s multilevel judicial field. Third, in comparing the courts’ responsibility constructions in the two crises, we contribute to the growing literature on how changing frames and narratives around shared responsibility enabled a previously unthinkable policy response (e.g., Crespy et al., 2023; Waas & Rittberger, 2023). Before comparing the FCC and the CoJ during the Eurozone crisis and the COVID-19 pandemic, we describe European economic governance as a difficult terrain for courts. We then discuss from a theoretical perspective why, rather than these courts claiming responsiveness to citizens’ wishes, we should expect an emphasis on – divergent or convergent – notions of responsibility, especially in times of crisis. Indeed, the CoJ’s and the FCC’s varying institutional standing and constitutional constraints lead us to expect that the FCC may be more akin to remind German institutions – and especially government and parliament – of their responsibilities. This is inter alia because of the fact that the CoJ had to answer the questions put to it by the FCC but also because especially during the Eurozone crisis, the ECB was left as the ‘only game in town’ to defend the EU’s economy since Member States only accepted to act very reluctantly. The CoJ is likely to remind other institutions of the institutional balance established in the Treaties and the existing divide of competences between the EU and Member States. Relatedly, we expect the FCC to focus more on notions of responsibility for integration, constitutional identity or self-determination of the people, whereas the CoJ is arguably more likely to champion a sense of responsibility as (economic) ‘system maintenance’ (Kinski, 2018, p. 348) based on technical expertise. Given the differences in the nature of the two crises regarding their perceived origin (endogenous vs. exogenous) and impact (asymmetric vs. symmetric) (Crespy & Schramm, 2021; Jones et al., 2016), we expect the two courts to converge in their interpretations of responsibilities in the COVID-19 pandemic as compared to the Eurozone crisis.

To investigate these diverging and converging interpretations of responsibility empirically, we conduct a comparative analysis of responsiveness and responsibility claims (for a similar approach on executive budget speeches in parliaments, see Karremans, 2021) of the courts’ jurisprudence on the responses to the Eurozone crisis and the COVID-19 pandemic. This methodology is based on the constructivist representative claims analysis (de Wilde, 2013; Kinski, 2018) and thereby fits well with the constructivist approach informing the Special Issue. It allows us to capture the particular interpretations of responsibility adopted by these two courts rather than measuring them against any set of pre-determined criteria. For instance, rather than a priori defining transnational fiscal burden-sharing as ‘responsible’ and ordoliberal policy ideas as ‘irresponsible’, this method captures how the judges themselves construct different responsibilities, and how they navigate and balance trade-offs between them. At the same time, we caution not to over-interpret claims as normative criteria or causal statements – i.e., ultimately, a claims analysis alone cannot reveal whether a judge claiming responsibility actually acted responsibly due to the legal constraints they are called to interpret and enforce, or because of the motivation to be responsible.

As expected, we find very little claims to responsiveness, while responsibility constructions of the two courts were less adversarial and more cooperative during the pandemic than the Eurozone crisis. This suggests that the gap between how the courts constructed their shared responsibilities in EU economic governance narrowed during the pandemic, at least temporarily. Whether this is an overall tendency will only be seen once the FCC rules on the case pending before it, regarding the European Central Bank’s Pandemic Emergency Purchase Programme (PEPP).

The economic and monetary union: a difficult terrain for the courts

The EMU bears some specificities that make it significantly distinct from other areas of EU law. This situation arguably places courts in a peculiar, if not difficult position. Indeed, it combines, on the one hand, full integration in the field of monetary policy whereby exclusive competence has been attributed to the EU for those Member States which have adopted the common currency (art. 3(1) c) TFEU). On the other hand, ‘[t]he Member States shall coordinate their economic policies within the Union’ (art. 5(1) TFEU). Hence, there is a significant gap in the Union’s margin of action and indeed prerogatives between the various policy fields that compose the EMU. In addition, the institutions in charge differ, as the ECB is tasked with conducting the euro area’s monetary policy, whilst Member States coordinate their economic and fiscal policies in the Council.

Until the Eurozone crisis, these differences had not caused major issues and the coordination between Member States had remained loose. With that crisis however, a myriad of measures had to be adopted that led to this coordination becoming tighter, notably thanks to the introduction of the European Semester for economic coordination (see on this initiative, among many others: Verdun & Zeitlin, 2018). The Commission was significantly empowered, and the ECB started to resort to unconventional monetary policy instruments. In addition, unprecedented solutions to the crisis were adopted both within and outside the EU legal framework (see further on this: Editors, Introduction, this issue).

As mentioned, national and European courts came to play a crucial role in, for instance, assessing the legality of the measures adopted at both the national and the EU level. The (arguably somewhat artificial) distinction between economic and monetary policies that exists in the Treaties demanded from judges that they assess whether a specific measure belongs to either of these policy fields, a decision which, in turn, bears particular importance because of the distinct levels of competences of the EU in each of them.

The first landmark case in this regard is the Pringle case of the Court of Justice (2012). The applicant challenged the legality of the (international) Treaty establishing the European Stability Mechanism (ESM Treaty) on the ground that it belonged to the area of monetary policy, which is an exclusive competence of the EU and where Member States may not act. Consequently, the Court was called to devise a series of criteria based on which monetary and economic policy were to be distinguished from each other (see further on this case: Beukers & De Witte, 2013). In assessing the legality of EU measures, judges have indeed since been using those criteria. Thereafter, the legality of the ECB’s Outright Monetary Transactions (OMT) Programme was challenged in a procedure before the FCC leading it to make its first preliminary reference ever to the CoJ. On that occasion, the Court was, again, called upon to assess whether the OMT Programme belonged to the area of monetary policy or whether, on the contrary, it should be considered to fall under economic policy (which would have made it illegal as the ECB may only act in the monetary policy domain). In the Gauweiler case, the Court followed the reasoning it had previously developed in Pringle and came to the conclusion that the ECB had not acted beyond the realm of its competences (see on this case: Borger, 2016). The FCC accepted this interpretation (as it should be, considering only the CoJ may rule on the conformity of a European measure with the Treaties) (see further on this case and the FCC’s role: Fontan & Howarth, 2021).

However, the dialogue between the European and the German court, and indeed their disagreement on the interpretation of the distinction between economic and monetary policy measures did not end there. In the midst of the first wave of the COVID-19 pandemic, in May 2020, the FCC nonetheless acted differently. In its Weiss judgment, which concerned another of the ECB’s unconventional monetary policy measures, the Public Sector Purchase Programme (PSPP), the FCC found that the Court of Justice, in its answer to the preliminary reference it had raised, failed to appropriately control the legality of the PSPP, thereby effectively challenging the legality of EU law. Additionally, also the measures adopted in response to the COVID-19 pandemic have been the subject of litigation before the FCC. This procedure regards the amendment to the Own Resources Decision (ORD), which the adoption of the EU’s recovery programme, Next Generation EU (NGEU), required. The legal issues raised concern in terms of ultra vires control (that is: the control that the ECB had not acted beyond the powers conferred upon it) and in terms of the Bundestag’s responsibility for integration (Integrationsverantwortung) – a concept it has developed since its Lisbon decision of 2009.

However, this time around the FCC did not find any legal issue and, instead, considered the Own Resources Decision to be lawful on the ground that it falls under the European integration agenda (Integrationsprogramm). It notably authorises the Union itself to borrow on financial markets and the funds may not be used for actions that go beyond the competences conferred upon the Union by its Member States. This increase is temporary and the amount of funds that may be borrowed is limited, while the amount of ‘own revenue’ may not exceed the total amount of own resources. In view of this positive assessment of the FCC, no question was raised to the CoJ on this occasion. However, the controversial and important character of this EU measure is beyond doubt, and is visible in the fact that – in a rare move – the legal service of the Council published its legal opinion (Opinion 9062/20 of 24 June 2020) already at the time when negotiations were on-going.

Court responsiveness and responsibility: theory and expectations

Peter Mair’s original diagnosis of a growing gap between responsiveness and responsibility centred on political parties in government (Mair, 2009). Applying these concepts to the case law of courts is far from straightforward (and it is even less so during crisis in the field of economic and monetary integration for the reasons stated above). Courts are non-majoritarian institutions, which are designed to interpret the law independently rather than to respond swiftly to changes in political currents and public opinion. By contrast, analysing court jurisprudence through the lens of responsibility claims promises to enrich the broader debate. By interpreting the law, courts contribute to the construction of responsibilities – directly, regarding their own responsibility, and indirectly, by reminding governments and parliaments of their legal responsibilities. In this section, we discuss the limitations to studying court responsiveness and their role in judging responsibilities in general, and derive expectations for the FCC and the CoJ in particular.

Court responsiveness

For various reasons, courts may be considered least likely cases of responsiveness to public opinion. In its strongest version, the argument holds that a court is a ‘counter-majoritarian’ institution, which through judicial review ‘thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it’ (Bickel, 1962, p. 17) – for example in order to protect minority rights. Even though this extreme claim about courts’ counter-majoritarianism is heavily contested (Mishler & Sheehan, 1993, p. 97), there are institutional characteristics, which prevent courts and individual judges from becoming ‘weathervanes, changing direction with the wind’ (Flemming & Wood, 1997, p. 494). Most fundamentally, courts are bound to interpret existing law and to honour judicial precedent. Judges are usually not selected by popular vote and, once appointed, their independence from external pressure may be protected, for example, by rules limiting reappointment and revocation as well as the secrecy of internal deliberations and judicial decision-making.

Furthermore, judges also have strategic reasons not to claim responsiveness, even when being influenced by public opinion, which makes empirical studies of court responsiveness notoriously difficult (Epstein & Martin, 2011; Blauberger et al., 2018, p. 1431). Judges certainly also have as their task to interpret existing law in accordance with the developments of societies, which ensures the sustainability of the existing legal orders and may explain changes operated in case law. Yet, unlike governments and parliaments, they do not need to claim responsiveness to ascertain their legitimacy.

Instead, their authority rests primarily on the strength of legal reasoning and the perception that law is distinct from politics. Arguably, this is even more the case in times of crisis as ‘a serious threat to the basic structures or the fundamental values and norms of a system, which under time pressure and highly uncertain circumstances necessitates making vital decisions’ (Rosenthal et al., 1989), p. 10). Existing theories and empirics on crisis management and emergency politics tell us that ensuring an effective crisis response may lead to executive dominance and the temporary altering of democratic procedures established in ‘normal times’ (e.g., Ansell & Trondal, 2018; Kreuder-Sonnen & White, 2022; Schmidt, 2022). Hence, in such crisis environments, we should expect even less responsiveness and more responsibility from executive institutions, including courts.

Against this background, we expect to find little to no evidence in the form of responsiveness claims in court jurisprudence on European economic governance. Moreover, the likelihood to find such claims should be even lower for the CoJ than for the FCC for substantive as well as strategic reasons. First, given the lack of a European public, it will often be particularly difficult for European judges to actually discern the public mood. This may partly be due to informational problems (Stiansen & Voeten, 2020, p. 774), for example, if no pan-European opinion data exists, and partly simply because there is nothing close to a unified ‘European’ opinion on many issues, but very heterogeneous domestic debates and preferences.¹ Secondly, even if European judges may be influenced by political considerations, they should be particularly cautious not to let these appear in their judicial decisions. The Court has long cultivated its non-political image and, as one of the classical writings on the CoJ argues, it ‘has carefully crafted its opinions to present the results in terms of the inexorable logic of the law’ (Burley & Mattli, 1993, p. 70; cf. Blauberger & Martinsen, 2020).

This is especially true in the specific crisis contexts under investigation here: As already noted, especially the Eurozone crisis management has been characterised by an overloading of responsibilities on the ECB. Even if this is less true of the reaction to the pandemic crisis within the EU (Fromage, 2022), it remains the case that the legacy of the measures adopted in response to the Eurozone crisis still constrained the ECB’s and Members States’ actions. Furthermore, the crisis situation characterising both periods did demand the adoption of unprecedented measures under the constraints set by the EU Treaties. This led to an extensive resort to some provisions incl. article 122 TFEU on emergency measures, which had hardly ever been used, and which depart from the ordinary legislative procedure. Obviously, this does not necessarily imply that they are unlawful.

In sum, although public opinion undoubtedly matters for judges, we expect to find little direct traces of court responsiveness as this could call their independence into question. Compared to the FCC, we expect even less direct traces of responsiveness for the CoJ.

Court responsibility

According to the introduction to this Special Issue, responsibility is

grounded in the idea that governments in democracies have (a) an epistemic advantage compared to the electorate, (b) a better understanding of the ‘general will’ than the organised or more politicised sections of the population, and (or) (c) a temporality of action that conflicts with the temporality of electoral pressures (Editors, Introduction, this issue).

The definition seems to capture responsibility even better, if we replace ‘governments’ with ‘courts’: courts clearly have an epistemic advantage due to the superior legal expertise of judges and constitutional courts in particular are destined to interpret the ‘general will’, as laid down in constitutional provisions and protected against short-term electoral considerations. Compared to responsiveness discussed above, we should, therefore, find much more explicit references to responsibility by courts, e.g., in the form of references to the authority of law and the long-term goal of system maintenance (Kinski, 2021), especially so in times of emergency (Kreuder-Sonnen & White, 2022).

However, as the Editors of this Special Issue emphasise, responsibility is inherently constructed and contested. One key reason for this contestation, according to Mair, lies in the multitude of responsibilities governments are faced with today, i.e., the ‘host of different and sometimes competing – and often legitimate – principals’ (Mair, 2013, p. 159). Responsibility in the context of globalisation and European integration is, therefore, more than just a medium- or longer-term responsiveness to the same electorate, but comprises respect for an increasing number of external constraints (Mair, 2013, pp. 160–161). Not just governments, but also courts are faced with this complexity of responsibilities in two respects. First, courts themselves are bound by the law. Apart from their own jurisdiction, courts may also be constrained by the law of other, competing or overlapping jurisdictions, as is for instance the case for EU Member States. Secondly, since courts are not themselves governing, but supposed to control governments, they often have to rule precisely on competing responsibility claims. When doing so, courts do not judge in a political vacuum, but are also faced with the political imperatives of international cooperation and constrained by the decisions of other independent bodies with technical expertise (e.g., decisions of central banks). To illustrate, during the Eurozone crisis, the ECB was left as the ‘only game in town’ to defend the EU’s economy since Member States only accepted to act very reluctantly. Hence, the CoJ’s margin of manoeuvre was reduced, in a context in which it was already called to interpret Treaty provisions, which, from an economic standpoint, seem artificial at the very least.

In the following, we formulate expectations on the divergence and convergence between the two courts regarding types and levels as well as substance of responsibility constructions in the two crisis moments. We distinguish different types of responsibility claims: Direct, when courts interpret their own responsibility, and indirect, when judging the responsibilities of other actors and institutions. Regarding the latter, we further distinguish two levels of indirect responsibility claims concerning actors at the same level (e.g., the FCC reminding the German parliament about its budgetary responsibilities) or at another level (e.g., the CoJ reminding the FCC about its responsibility to be friendly towards the European legal order).

Additionally, we expect differences on the substance of responsibility claims. The FCC has developed two specific concepts in its judgment on the Lisbon Treaty, which reflect the delicate balance between competing responsibility claims (Voßkuhle, 2016, pp. 165–166). On the one hand, there is Europarechtsfreundlichkeit (friendliness towards the European legal order), which refers to the fact that the German Basic law is open towards European integration and its needs. On the other hand, Integrationsverantwortung (responsibility with respect to European integration) implies a specific duty to ensure the observance of certain principles anchored in the German constitution in the process of integration as these principles could not possibly be affected by integration. In general, we expect the FCC to balance both kinds of responsibility claims, referring to the German Basic Law’s friendliness towards the European legal order as well as to its and German institutions’ own responsibility with respect to European integration more generally. The greater the FCC’s reservations against further integration, the more we expect an emphasis on the ‘responsibility with respect to European integration’. Formally, these claims are often directed at domestic institutions such as the Bundestag or the German government, but, ultimately, by making these claims, the FCC seeks to act as a counterweight against ‘obvious and structurally important competence violations by EU institutions’ (Voßkuhle, 2016, p. 166). Claims about the ‘responsibility with respect to European integration’ or the ‘self-determination of the people’, thus, fit the FCC’s traditional role as a strong constitutional court controlling the domestic legislature or government, while sending a signal regarding its interpretation of responsibilities to the European level.

The CoJ often looks ‘unconstrained’ to its observers (Scharpf, 2012): EU Treaty law is full of vague provisions offering room for creative interpretation and thus jurisprudence, the supremacy of EU law is generally accepted and the CoJ is its ultimate interpreter. The Court’s strong reliance on teleological reasoning in combination with the Treaty goal of ‘ever closer Union’ (Schmidt, 2018, p. 9), its broad discretion in applying core EU legal concepts such as ‘proportionality’ (Martinsen, 2011) or ‘effet utile’ (Garben, 2019), and the high decision-making thresholds for Member State governments to overrule CoJ jurisprudence (Alter, 1998) further add to this view. CoJ responsibility, then, would simply be what the Court makes of it. At the same time, EU law is constrained by the principle of conferral (art. 5(1) TEU), which was even reinforced following the entry into force of the Lisbon Treaty. Research has also shown that the CoJ is sensitive to Member State governments’ interpretations of EU law, in particular with respect to secondary legislation and in cases of ‘exceptional unity’ among Member State governments (Larsson & Naurin, 2016, p. 405; Carrubba & Gabel, 2014).

Against this background, we expect the CoJ in its direct responsibility claims to emphasise its duty to protect and promote ‘ever closer Union’ rather than deference to national sovereignty. We expect this to be the case in particular, when interpreting EU Treaty provisions on economic governance, when faced with a situation in which no other solution would have been possible at the EU level, and when not being confronted with broad opposition from Member State governments.

When judging the responsibilities of others, the CoJ differs from domestic constitutional courts such as the FCC in at least two respects. First, the vagueness of many EU Treaty rules and the EU’s (i.e., primarily Member States’) difficulties to reach political agreement on crisis responses can also get the Court into dilemmas of conflicting responsibilities. The Court may become confronted with situations in which it has de facto no choice but to legally approve what has previously been decided at the highest political level, i.e., by the European Council (Leino-Sandberg & Ruffert, 2022, p. 464). In a similar vein, other independent actors such as the ECB may also (willingly or because of external constraints) use the broad discretion EU Treaty law offers to them and, thus, put the CoJ under pressure to legalise their behaviour ex-post through creative interpretation. Critics deplore an ‘overburdening of the law and the judiciary’ under these circumstances (Joerges & Kreuder-Sonnen, 2017). Secondly, the majority of cases reach the CoJ via preliminary references from national courts. This procedure, however, is very different from constitutional review, which seeks to check and balance the legislative and executive branches, and rather resembles an enforcement mechanism of the European vis-à-vis the Member State level (Alter, 1998, p. 126). As a consequence, even if a preliminary reference seeks to question the legality of the EU crisis responses, we expect the CoJ to mainly judge on the responsibilities of other institutions or on the limitations to the EU’s competences.

Courts and responsibilities in different crisis contexts

While the Eurozone crisis is widely framed as an asymmetric and endogenous crisis caused by the misconduct of a few national governments accumulating unsustainably high debt levels (e.g., Jones et al., 2016), the COVID-19 crisis has arguably been a more symmetric and exogenous shock (Miró, 2022). This differing perception of the nature of the crisis may not only affect the attitudes of political actors towards conditionality or their willingness for debt mutualisation and EU-wide risk pooling (e.g., Closa & Maatsch, 2014), it also tells us something about how the courts navigate different responsibility constructions in different crisis contexts. The asymmetric framing of the Eurozone crisis stressed conflicts around ‘deserving’ and ‘undeserving’ receivers of EU solidarity, and its underlying ‘moral hazard paradigm’ (Buti & Fabbrini, 2023, see also Authors in this Special Issue), especially prevalent in (German) ordoliberal thinking, assigned responsibility to those countries who take the risks with everyone being liable for their own actions. Such notions of responsibility prefer risk-reduction (including, for example, protecting the long-term budgetary responsibility of parliaments). By contrast, during the COVID-19 pandemic we saw responsibility notions that were more open to (European) risk-sharing (Schäfer, 2016; Schramm, 2023), leading some scholars to argue for a shift towards more of a collective European responsibility during the COVID-19 pandemic (e.g., Buti & Fabbrini, 2023).

Based on these considerations, we expect the FCC and the CoJ to be less adversarial and more cooperative in their responsibility constructions in their pandemic jurisprudence compared to their Eurozone crisis jurisprudence. Essentially, the FCC is expected to converge towards the CoJ’s ‘EU friendly’ interpretation of responsibilities, while at the same time both stress the one-off, exceptional nature of the measures (which otherwise would not have been legal under EU law).² In that sense, rather than a narrowing of the gap between responsiveness and responsibility per se, we expect a narrowing of the gap between the two courts in how they construct their shared responsibility in EU economic governance.

Data and methodology

Case selection and sample

To find the (limited) traces of responsiveness, and mainly detect how the courts construct responsibility, we investigate four important cases (based on six documents) during the Eurozone and the COVID-19 crisis. These cases were selected for two reasons. First, we are interested in comparing interpretations of responsibility in two different crisis contexts. Given the different nature of the two crises and of the EU’s responses, we saw little reason to expect a continuous evolution of these interpretations and rather decided to study in-depth different interpretations of responsibility related to one crucial case per crisis, which allows us to better capture the (potential) differences between the two crises. Second, we are interested in comparing different interpretations of responsibility across courts from the European and national levels. Next to the CoJ, we chose the German FCC for our comparison, since this constitutional court was involved in some of the central judicial disputes about European economic governance, which allows us to compare different court interpretations on the same issues. In fact, the German FCC was considered as a potential counterweight to the EU’s institutions so regularly during the Eurozone crisis that Christine Lagarde, president of the European Central Bank, was said to have threatened that she would leave the room if the FCC were mentioned one more time.³ Specifically, we focus on the courts’ dialogue on Outright Monetary Transactions for the Eurozone crisis. For the COVID-19 pandemic, we look at the NextGenerationEU recovery plan (see Online Appendix for a summary table of the cases and documents). We analysed the English translations of the German judgments.

In January 2014, the legality of the ECB’s OMT Programme was challenged in the FCC by German politician Peter Gauweiler (CSU) and the party Die Linke. In February 2014, the FCC (Document 1a) requested a preliminary ruling from the CoJ on the compatibility of the OMT Programme with the TFEU. The Advocate General issued his opinion (Document 2a) in January 2015 and on 16 June 2015; the CoJ (Document 2b) ruled the OMT Programme to be legal, which the FCC (Document 1b) accepted in its ruling in June 2016.

When it comes to the NGEU, the oral hearings of the FCC took place on 26 and 27 July 2022 on the Own Resources Decision (2 BvR 547/21, 2 BvR 798/21) and in its judgment of 6 December 2022 (Document 4), the FCC did not request a preliminary ruling, but decided instead that the constitutional complaint was unsuccessful. Since, to date, there is no judgment by the CoJ on NGEU or the Own Resources Decision, we have no perfectly matching EU document for this case. We use the Council’s legal service opinion of 24 June 2020 (Document 3) as the best available proxy to a (non-existent) CoJ judgment. While Council legal service opinions are certainly not general proxies for CoJ rulings, the particular opinion on NGEU/ORD can be used as a proxy for missing CoJ jurisprudence for several reasons. The opinion, published when negotiations were still underway, was of crucial importance (De Witte, 2021, p. 663; Leino-Sandberg & Ruffert, 2022, p. 463) as the Council’s legal service argued that the Programme was compatible with EU law, potentially dispelling concerns of hesitant Member States, and examining adversarial arguments, which, in turn, could be used as the lines of defence against potential legal challenges in court. Given that the court has legalised political constraints ex-post regarding emergency decisions on EMU governance, the CoJ would be highly likely to follow the Council legal service opinion on NGEU/ORD as well (Leino-Sandberg & Ruffert, 2022, pp. 463–464; also Kombos, 2019). The pro-integration nature of the issue and the unanimous decision in the Council would make it particularly likely for the court to follow the opinion of the Member States in this case (e.g., Carrubba & Gabel, 2014; Dederke & Naurin, 2018; Larsson & Naurin, 2016). EU scholars have used this opinion to understand the EU legal interpretation of NGEU/ORD, discuss its legal basis and implications (e.g., De Witte, 2021; Fabbrini, 2022; Leino-Sandberg & Raunio, 2023).

Overall, the cases indicate broader fault lines that have implications for responsibility constructions. Responsibility for preserving the common currency and macroeconomic stability may conflict with preserving the existing legal order in the EU. On the one hand, there is Mario Draghi’s ‘whatever it takes to preserve the Euro’ (Draghi, 2012) coupled with Angela Merkel’s ‘if the Euro fails, Europe fails’ (Merkel, 2010). On the other hand, we have the Justice of the FCC, Peter Huber, countering that what has to be done depends on what may be done, and what may be done is laid down in the European Treaties (Steinbeis, 2014). To some extent, a sense of responsibility as (economic) system maintenance based on technical expertise is opposed to a constitutional responsibility. In the words of Peter Huber, the law must not be allowed to become ‘“a quantité négligeable” in relation to the economy and politics. I do not want to see my children and grandchildren living in a post-democratic age where they become objects of systems that they themselves can no longer control' (Steinbeis, 2014, translated by the authors).

Capturing responsibility constructions in legal texts

Scholars are increasingly using political text analysis methods to analyse legal texts. The CJEU Database Platform, for instance, provides information on both judgments and judges (Brekke et al., 2023). The European Constitutional Court Network (ECCN)⁴ uses network approaches to explore how different constitutional courts refer to each other in their judgments. We draw on a manual content analysis technique that is very well established in the analysis of political texts. To detect patterns of responsibility and (limited) responsiveness, we rely on a Representative Claims Analysis (RCA) (de Wilde, 2013; Kinski, 2021) (see Online Appendix for the codebook). This allows us detect any traces of responsiveness (even though we expect little) and to capture which responsibility narratives courts employ. In doing so, we aim to show how the courts construct and balance different responsibilities in their judgments. Four coders conducted the analysis using the qualitative coding software MAXQDA.

We checked for responsiveness claims, i.e., judges speaking directly about citizens, societal groups and their needs and problems, to see, if our expectation on their general absence holds empirically. It was much more demanding to capture the different constructions of responsibility by the courts. To investigate the responsibility-responsiveness nexus in annual budget speeches in France, Germany and Spain from 2007 to 2019, Karremans (2021, p. 1541) distinguishes different types of responsible justifications ranging from policies being in line with international agreements to fiscal conditionality as a necessary tool to reduce debt and deficit levels. While these justifications work well for political texts, not all of them are suited to capture responsibility narratives by the courts. We captured the distinction between direct (own) and indirect (other) responsibility claims and, for the latter further distinguished between same level and other level. Substantially, we coded ten different responsibility constructions (see Online Appendix for details): (1) Legal order / constitutional identity, (2) system maintenance, (3) budgetary responsibility, (4) monetary policy responsibility, (5) self-determination of the people, (6) responsibility for integration, (7) friendliness towards the EU legal order, (8) economic policy responsibility, (9) exceptionality and limitation, and (10) solidarity.

Courts as the guardians of responsibility

This section offers an in-depth analysis of responsibility patterns in the judgments by the FCC and CoJ on the EU’s response to the economic fallout of the Eurozone crisis and the COVID-19 pandemic respectively. After a brief discussion of the (lack of) responsiveness claims, we put the emphasis on similarities and differences between the two courts and crises with a view to establishing whether we see a narrowing of the gap between different responsibility constructions by the courts.

Courts and the absence of responsiveness claims

In line with our expectations and the general role of courts as independent, non-majoritarian institutions in a representative political system, the courts make (next to) no responsiveness claims, while they very extensively engage with, construct and balance the different responsibility narratives. While the CoJ entirely refrains from any responsiveness claims, the FCC does make a handful, the most notable one about the redistributive effects of the ECB’s OMT Programme on taxpayers across different Member States, which echoes a typical transnational responsiveness claim we saw in national parliaments debating Eurozone crisis measures (e.g., Closa & Maatsch, 2014; Kinski, 2018).

Responsible judges and judging responsibilities

The two courts are very active in making both direct and indirect responsibility claims. They extensively elaborate their respective own responsibilities (‘responsible judges’), while at the same time referring to other actors and institutions and their responsibilities in EU economic governance (‘judging responsibilities’). While the FCC is overall more adamant especially in reminding the German Bundestag about its responsibilities, the CoJ is more cautious to single out certain actors and rather discusses the institutional balance established in the Treaties and the existing divide of competences (monetary and economic policy) between the EU and Member States.

In the following example, the FCC clearly reminds the German Bundestag of its budgetary responsibility (indirect responsibility claim) and links this to a more direct responsibility claim on the constitutional principle of democracy:

The budgetary powers of the Bundestag (…) and its overall budgetary responsibility are indispensable elements of the constitutional principle of democracy that are protected by Art. 38(1) first sentence, (…). It is for the Bundestag, as the elected legislator directly accountable to the people, to take all essential decisions on revenue and expenditure (…), including the overall financial burden imposed on its citizens and on the essential tasks of the state (…). (Own Resources Decision, 6 December 2022, 2 BvR 547/21, 2 BvR 798/21, p. 48, para. 134, emphasis added)

Frequently, the FCC links these responsibility reminders for other institutions with direct responsibility claims on its own role in protecting the fundamental democratic rights of German citizens, individuals and ‘the people’.

According to the established case-law of the Federal Constitutional Court, the right to vote is not merely a formal legitimation of the (federal) state power. Rather, it affords the individual the right to influence policy formation and to effect change by means of their electoral decision. (OMT Decision, 21 June 2016, 2 BvR 2728/13, p. 33, para. 81)

Similar to the state’s duties to protect arising from fundamental rights, the responsibility with regard to European integration (Integrationsverantwortung) requires constitutional organs to protect and promote the legal interests of individual rights holders (…). (Own Resources Decision, 6 December 2022, 2 BvR 547/21, 2 BvR 798/21, p. 45, para. 122, emphasis added)

Notably, and in line with its established case law, in its OMT judgment, the FCC puts a focus on direct responsibility claims. To illustrate, below the FCC clearly argues that whenever the individual German citizens’ right to democratic participation is curtailed in such a way that it violates their political self-determination, these citizens need to counter this decision with its help (Art. 38 GG).

This substantive content of what is guaranteed by the right to vote is violated only, but always so, if this right is in danger of being rendered ineffective in an area that is essential for the political self-determination of the people, i.e., if the democratic self-government of the people – through the German Bundestag – is permanently restricted in such a way that central political decisions can no longer be made independently. (OMT Decision, 14 Jan. 2014, 2 BvR 2728/13, p. 15, para. 19, emphasis added)

In contrast, in its judgement on the EU’s response to the economic consequences of the COVID-19 pandemic, specifically the ORD, the FCC tilts the balance towards the Bundestag’s responsibility that allows for a margin of discretion that the court has to respect in principle.

It was within the Bundestag’s margin of appreciation to adopt the challenged Act and to thereby give its approval to the 2020 EU Own Resources Decision and to assume the underlying risks of liability. (Own Resources Decision, 6 December 2022, 2 BvR 547/21, 2 BvR 798/21, p. 72, para. 229)

It is primarily for Parliament to determine whether the scale of payment obligations and assumptions of liability will result in the Bundestag relinquishing its budgetary autonomy. Parliament has a wide margin of appreciation, particularly with regard to the risk of the commitments being called and with regard to the expected consequences for the legislator’s latitude; the Federal Constitutional Court must, in principle, respect this margin (…). (Own Resources Decision, 6 December 2022, 2 BvR 547/21, 2 BvR 798/21, p. 49f, para. 137, emphasis added)

At the same time, the FCC still reminds the German parliament that its responsibility for integration is not only a right, but also a duty that needs to be fulfilled to the best of parliament’s ability.

Art. 23(2) and (3) GG therefore entail not only a right (…) but also a duty (…) on the part of the Bundestag to effectively exercise its responsibility with regard to European integration. (Own Resources Decision, 6 December 2022, 2 BvR 547/21, 2 BvR 798/21, p. 45, para 123, emphasis added)

By contrast, in its indirect responsibility claims, the CoJ less clearly singles out individual institutions, but rather emphasises the various responsibilities that exist within the multilevel European legal order, how they can create tensions between national and European courts, and how these different responsibilities can be balanced. In that sense, it does not remind the ECB of its monetary policy responsibility or national governments of their economic policy responsibility, but discusses the distribution of competences.

The ESCB thus ensures that the monetary policy measures it has adopted will not work against the effectiveness of the economic policies followed by the Member States. (OMT Decision, 16 May 2015, C-62/14, p. 12, para. 60, emphasis added)

In this respect, the draft decision and draft guideline produced by the ECB in these proceedings indicate that the Governing Council is to be responsible for deciding on the scope, the start, the continuation and the suspension of the intervention on the secondary market envisaged by such a programme (…). (OMT Decision, 16 May 2015, C-62/14, p. 17, para. 106, emphasis added)

Interestingly, what the CoJ does, however, rather explicitly do, is remind the FCC about its responsibilities to be a reliable and trustworthy partner upholding the European legal order and accepting its decisive authority as illustrated by the statement of the Advocate General below:

Therein lies all the ambiguity with which the Court of Justice is faced in this reference for a preliminary ruling: there is a national constitutional court which, on the one hand, ultimately accepts its position as a court of last instance for the purposes of Article 267 TFEU, and does so as the expression of a special ‘cooperative relationship’ and a general principle of openness to the so-called ‘integration programme’ but which, on the other hand, wishes, as it makes clear, to bring a matter before the Court of Justice without relinquishing its own ultimate responsibility to state what the law is with regard to the constitutional conditions and limits of European integration so far as its own State is concerned. That ambivalence runs all through the request for a preliminary ruling, so that it is extremely difficult to disregard it entirely when analysing the case. (Advocate General Opinion, 14 Jan. 2015, C-62/14, p. 10, para. 49, emphasis added)

The CoJ argues that this notion of a sincere cooperative relationship is essential in this construction of shared responsibility in a multilevel legal order, which the FCC sometimes only grudgingly accepts.

In concrete terms, that means that the Court of Justice, rather than immediately excluding such a possibility, would in fact trust the national court — once it has considered the answer provided by the Court of Justice to the question raised and without prejudice to the exercise of its own duties — to accept that answer as decisive in the proceedings before it. Sincere cooperation involves an element of trust and that trust may take on a particular meaning in this case. (Advocate General Opinion, 14 Jan. 2015, C-62/14, p. 11, para. 67, emphasis added)

Since the ultra vires and identity reviews may, in certain limited cases, result in Union law having to be declared inapplicable in Germany, the principle of the Constitution’s openness to European integration – in order to protect the functioning of the Union’s legal system and considering the legal concept expressed in Art. 100 sec. 1 GG – requires that the finding of a violation of the constitutional identity or the finding of an ultra vires act be reserved for the Federal Constitutional Court. (OMT Decision, 21 June 2016, 2 BvR 2728/13, p. 50, para. 155, emphasis added)

Converging responsibility constructions during the pandemic?

For the Eurozone crisis, we observe divergent constructions of responsibilities between the two courts. For the pandemic, we overall find a more cooperative and shared responsibility construction. The FCC chooses to go along with how responsibility was constructed in the Council legal service opinion and emphasises friendliness towards European integration over responsibility for integration in an exceptional crisis moment. At the same time, both highlight the exceptionality of the crisis context as well as the non-permanent and strictly limited applicability of the crisis response measures.

In the judicial dialogue on the OMT Programme, the FCC clearly stresses its responsibility for integration urging the German Bundestag in turn to protect its very own budgetary responsibility. This is well in line with our expectation that the FCC would remind other institutions at the same level about their responsibilities. At the same time, in doing so, the FCC highlights its own responsibility to protect the German constitutional order.

Besides the institutions of the European Union, German constitutional organs are also responsible to make sure that the programme of integration is observed. (OMT Decision, 14 Jan. 2014, 2 BvR 2728/13, p. 20, para. 31, emphasis added)

The constitutional organs’ obligation to fulfil their responsibility with respect to European integration is thus paralleled by a right of the voters enshrined in Art. 38 sec. 1 sentence 1 GG. This right requires the constitutional organs to ensure that the drops in influence (Einflussknicke) and the restrictions on the voters’ “right to democracy” that come with the implementation of the European integration agenda in any case do not extend further. (OMT Decision, 21 June 2016, 2 BvR 2728/13, p. 53, para. 166, emphasis added)

Turning to the responsibility claims of the CoJ in its preliminary ruling on OMT, at first glance, we observe some similarities with the FCC. It reminds everyone, including the FCC and Member State governments questioning the admissibility of the request for preliminary ruling, of the European legal framework and the responsibilities of the different institutions, including itself (and the ECB), within it.

In the first place, as regards the argument that the dispute in the main proceedings is contrived and artificial and that the questions referred are hypothetical, it should be observed that, as is apparent from paragraph 15 of this judgment, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling (see, to that effect, judgment in Melloni, C-399/11, EU:C:2013:107, paragraph 28 and the case-law cited). (OMT Decision, 16 May 2015, C-62/14, p. 8, para. 24, emphasis added)

What is more notable, however, is that the CoJ employs a much more technical understanding of responsibility in line with functional system maintenance echoing much of the ECB’s justification that Outright Monetary Transactions safeguard an appropriate monetary policy transmission and the consistency or ‘singleness’ of the monetary policy. The CoJ thereby speaks of responsibility in terms of both ECB independence and constraints to its actions.

It should be added that full compliance of the Member State concerned with the obligations arising under an adjustment programme to which it has subscribed is not, in any event, a sufficient condition to trigger intervention by the ESCB in the framework of a programme such as that announced in the press release, since such intervention is made strictly conditional upon there being disruptions of the monetary policy transmission mechanism or the singleness of monetary policy. (OMT Decision, 16 May 2015, C-62/14, p. 13, para. 62, emphasis added)

In contrast, the FCC does not make this system maintenance argument its own, but rather distances itself from it referring to the ‘stated aim’ of the OMT (14. Jan. 2014, p. 9, para. 2). While in its OMT-decision, the FCC stresses responsibility for integration and the budgetary responsibility of the Bundestag using arguments within the logic of moral hazard, in its Own Resources Decision, the FCC focuses more on friendliness towards the European legal order.

This is because, based on a strict understanding of the 2020 EU Own Resources Decision, the Second Senate is of the view that the measure does not involve a sufficiently qualified exceeding of the European integration agenda or an impairment of the Basic Law’s constitutional identity (…). There is no reason to assume that the Court of Justice of the European Union would interpret the competences in Art. 122 and Art. 311(2) TFEU more narrowly than the Federal Constitutional Court. Against this background, the constitutional complaints would remain unsuccessful even with a referral of these questions to Luxembourg (…). (Own Resources Decision, 6 December 2022, 2 BvR 547/21, 2 BvR 798/21, p. 74, para. 236, emphasis added)

At the same time, both the Council legal service opinion and the FCC judgment on Own Resources highlight the exceptionality and strict limits to the EU’s recovery and rebuilding efforts.

The NGEU is prompted by the exceptional situation which has arisen as a consequence of the COVID-19 pandemic and the ensuing urgent need to support a swift recovery. It is, therefore, by no means a typical spending programme. Rather, it is proposed as an exceptional, temporary and one-off instrument. (Council Legal Service Opinion, 24 June 2020, p. 26, para. 64)

There are in fact ample past instances of borrowing being a part of the European Union’s financial operations ([…]). However, in all of those cases, the amount was limited, and the borrowed funds were exclusively used for the purposes of (back-to-back) lending. (Own Resources Decision, 6 December 2022, 2 BvR 547/21, 2 BvR 798/21, p. 54, para. 156, emphasis added)

The emphasis on shared responsibility as an exception to the rule allows the courts to bridge their previously diverging responsibility claims. In the case of the Council legal service opinion, it also responds to the need to justify the measures’ legality: had this not been a one-off, exceptional measure, it would not have been legal under EU law. The question remains how durable the observed convergence will be.

Concluding remarks

In this article, we theorised and analysed (responsiveness and) responsibility claims in landmark cases on EU economic governance at the CoJ and the German FCC during the Eurozone crisis and the COVID-19 pandemic. Three main findings stand out: First, as expected, we find hardly any responsiveness claims in the language of the courts under investigation, none for the CoJ and a handful for the FCC. Overall, as discussed, we have to be very cautious to interpret them as signals of responsiveness.

Second, both courts do not construct a tension between responsibility and responsiveness, but rather contest and balance different notions of responsibility. The FCC claims its responsibility for integration and is determined to remind other German constitutional organs, primarily the German Bundestag, of their responsibilities. The CoJ is more cautious to call upon other EU institutions and rather highlights the institutional balance and division of competencies. The court is, however, more adamant about reminding the FCC of shared responsibilities in a multilevel European legal order.

Third, the gap between both courts and how they interpret responsibilities in the EU multilevel system seems to be narrowing, when we compare the two crises. In the Eurozone crisis, we find divergent notions of responsibility between the two courts. Responsibility claims of the FCC mainly refer to the national constitutional order and constitutional identity as well as responsibility for integration and citizens’ right to democratic self-determination, but less to the necessities of system maintenance. By contrast, these claims about system maintenance prevail in the language of the CoJ’s judgment on the OMT Programme. In the pandemic, the FCC assigns greater weight to its own responsibility of friendliness towards the European legal order, yet still guarding its responsibility for integration.

In considering the broader implications of our study, it becomes evident that the themes of responsibility and responsiveness in EU economic governance, as examined in the context of the CoJ and the German FCC during the Eurozone crisis and the COVID-19 pandemic, extend beyond the specific cases under investigation. The potentially narrowing gap in the interpretation of responsibilities between the two courts prompts questions about the adaptability of the European legal order and the extent to which exceptional measures, like those observed during the COVID-19 pandemic, could influence long-term changes in EU governance structures and notions of solidarity. As the article suggests, with the crisis instruments likely to stay exceptional and limited, entrenched ideas within EU economic governance may indeed resurface, but our findings raise the possibility that the discourse surrounding shared responsibilities is evolving, paving the way for previously impossible policy responses and changing economic ideas.

Acknowledgements

We thank the three anonymous reviewers as well as the editors of the Special Issue and the Journal for their very helpful comments and constructive suggestions. Previous versions of this article have been presented at a research workshop at the Université Libre de Bruxelles and the 2023 CES conference in Reykjavik. We thank all participants on these occasions for their feedback and our student assistants for the support with the data collection.

Disclosure statement

No potential conflict of interest was reported by the authors.

Additional information

Notes on contributors

Lucy Kinski

Lucy Kinski is Postdoc in European Union Politics at the Salzburg Centre of European Union Studies (SCEUS), University of Salzburg, Austria.

Diane Fromage

Diane Fromage is Professor of European Law at the Salzburg Centre of European Union Studies (SCEUS), University of Salzburg, Austria.

Michael Blauberger

Michael Blauberger is Professor for Politics of the European Union at the Salzburg Center of European Union Studies (SCEUS), University of Salzburg, Austria.

Notes

1 Instead, the CoJ has been found to be ‘responsive’ to other influences such as Member State governments’ written observations (Larsson & Naurin, 2016) or to the position of the Commission (Burley & Mattli, 1993, p. 71). These influences, however, go beyond our analysis in the present article, which focuses on responsibility constructions.

2 Note that we do not and cannot argue that this is a progressive development.

3 See online: https://www.bundestag.de/parlament/grundgesetz/gg-serie-12-rechtsprechung-634556

4 European Constitutional Court Network: eccn.at