Well its a relief to see Michael McDowell writing about something he actually knows something about, even if I disagree with his line of argument. If the German court can be allowed to superimpose its own judgement on an EU policy it doesn't like, what's to prevent all other member states doing the same? So Hungary and Poland (who were quick to draw this conclusion) can ignore democratic norms as enshrined in the Treaties and substitute the judgement of their own (politically loaded) courts for that of CJEU?
Ireland's constitutional amendments, implementing various EU Treaties, explicitly state that "nothing in this Constitution" can override any obligations contained in the Treaties. Have we therefore been over-implementing EU Treaties and ceding more sovereignty than was needed? Certainly this would create one law for Germany, and one for Ireland, as there is no sense the Irish Supreme Court could over-rule the CJEU. Too bad for Michael; there goes another potentially lucrative revenue stream for his legal practice.
But the Karlsruhe judgement is much more fundamentally flawed than that. It rests on the assumption that the EU is not a state, when that is precisely what the EU is, albeit an emergent one. How else can it have citizens? And what is a state other than a set of laws which bind its citizens together? To argue, as Michael does, that one possibly flawed CJEU judgement (Opinion 2/13) undermines its whole legitimacy is a ridiculous argument from one particular to the general. What court has never issued a flawed judgement, including Karlsruhe, in this particular case?
So contra Michael, this is precisely a case of German exceptionalism by a set of jurists who have not yet come to terms with their secondary position in the legal hierarchy. Time to get real.
And as if to underline the point Merkel and Macron have responded by asserting the primacy of EU institutions by agreeing to allow the EU Commission to borrow €500 Billlion to fund its next budget - thus mutualising debts in a way Germany has long resisted in its opposition to "Eurobonds" and "Coronabonds".
Contrary to Karlsruhe's fondest imaginations, the ECB is not answerable to Karlsruhe for its decision making, the limits of which are justiciable only by the CJEU in accordance with the Treaties.
If Germany has a difficulty with ECB actions, as it often does, it has to make its case at the ECB Board meetings, where it has sometimes been outvoted during and since Draghi's tenure. If, notwithstanding being outvoted, its has an issue with the scope of ECB decision making, it can make its case to the CJEU, like every other member state. Karlsruhe is frankly irrelevant to this process, however much its Justices would like to think otherwise.
Failing that, Germany's only remedy is to leave the Eurozone completely, something many economists think is necessary and beneficial in any case, as Germany's national obsession with trading and financial surpluses has been de-stabilising the whole bloc. It will soon find that trading with a relatively revalued Deutschmark is a much more difficult thing, besides losing a lot of the value of its Euro denominated credit mountain, devalued in consequence. The Eurozone can then pursue inflation and employment targetting policies much more appropriate the majority of its members, including Ireland.
The ugly truth is that Germany has been the Euro's largest beneficiary, but if like the UK, it wants to throw those benefits away, it is perfectly entitled to do so, although it is notable that the Eurozone does not contain an Article 50 style exit clause.
Far from being slow to condemn Karlsruhe, Ireland should be equanimous about the prospect of Germany leaving the Eurozone, if that is what it really wants to do, as the logic of the Judges ruling seems to suggest.
