79
Second working session — The impact
and purpose of such arbitration clauses (
80
). With a view to the principle of
autonomy of the EU legal order, however, such clauses and an opening of the
EU law regarding Article 267 TFEU seem to be a condition for compliance of
investment agreements with the Treaties.
3. The ECB-Program on OMT and the German Federal
Constitutional Court
Fifty years after
Van Gend
one of the greatest threats to the autonomy of
the European legal order might still be pending in Karlsruhe (
81
): Scrutinizing
the ECB’s announcement of potentially unlimited future Outright Monetary
Transactions (OMT) at the secondary market could well represent a viola-
tion of the autonomy of the EU legal order and the duties of Germany under
Article 4(3) TEU. To be sure: a formal decision has been taken by the ECB
only on some technical features of the program (
82
), but no purchase has been
effectuated so far; so the first question would be that of the very subject of the
application. As it is directed against a simple announcement, the application
should be dismissed from the outset and the case closed. The function of the
announcement, furthermore, was to stop speculation of the markets against
any limit set to the any purchase of bonds by the ECB. This has worked, and
its imminent logic is that because of this effect the Program will not need to
be implemented at all. Would the GFCC raise serious doubts about its legal-
ity, this would not only infringe the autonomy of the EU legal order but also
compromise its ‘effet utile’: the markets would return to the crisis mode of the
period preceding the announcement.
The Court has many good reasons to respect the division and the lim-
its of the respective powers of the European and national courts under the
Treaty, including the principle of loyal cooperation laid down in Article 4(3)
TEU. Should it consider questioning the power of the ECB to do what it has
announced, it would have to open the judicial dialogue by referring the case
(
80
) See also Classen (note 66), p. 622; the point is also recognised by v. Papp (note 66), paragraph
9.
(
81
) For the background see Helmut Siekmann/Volker Wieland,
The European Central Banks’
Outright Monetary Transactions and the Federal Constitutional Court of Germany
, Institute
for Monetary and Financial Stability, Goethe-University Frankfurt, Paper Series No 71
(2013), available at:
ECBs_OMT_and_the_FCC_of_Germany.pdf.
(
82
) ECB Press release 6 September 2012 – Technical features of OutrightMonetary Transactions,
available at:
