80
Ingolf Pernice
Deuxième séance de travail — Les retombées
to the ECJ under Article 267 TEU first. Its doubts and reasons would be con-
sidered within the framework of this procedure by the institutions, by the
national governments submitting their views to the ECJ, be discussed at a
Courts’ hearing, be considered by an Advocate General and, finally, have to
be assessed by the Court, probably sitting as a plenary. It would require much
effort, in reaction to the outcome of such a process, to argue contrary to what
the judgment of the ECJ suggests (
83
).
What is more likely, and how the public hearing at the court was perceived
by some observers (
84
), is that the GFCC finally declares the application inad-
missible or, in avoiding a reference to the ECJ limits itself to providing guid-
ance to the German Federal Bank as well as other authorities involved in the
processes of decision-making of the ECB in a given case where a decision un-
der the OMT-Program may be considered, with a view to preserving the sta-
bility of the Euro and the budgetary prerogatives of the German parliament.
4.
Conclusions
Internal and external autonomy of the European legal order, fifty years after
Van Gend
, cannot be understood as absolute as it may have been conceptual-
ised in the earlier jurisprudence of the ECJ. Challenges both, from the Member
States’ constitutions and constitutional courts and from international law must
be taken into account. As the EU is consisting of constitutional states and em-
bedded in an increasingly interdependent global system, the autonomy of its le-
gal order must be understood as ‘embedded autonomy’ too. It must be open and
accommodate, in order to be sustainable, to normative claims and limitations
originating from national constitutions as well as from internationally recog-
nised principles, in a spirit of cooperation and without, however, giving up the
fundamental values referred to in Article 2 TEU and its special constitutional
setting which it is bound to defend internally as much as in its external relations.
(
83
) The ECJ could particularly argue that indirect purchases of bonds are compatible with
Article 123 TFEU under the double condition that EU Member States are incited to pursue
a sound fiscal policy and that price stability is not jeopardised, see Daniel Thym/Mattias
Wendel,
Préserver le respect du droit dans la crise,
Cahiers de droit européen (CDE) 2012,
p. 733, 748 et seq.
(
84
) See e.g. Max Steinbeis’ comments to the hearing, ‘Die EZB vor dem Verfassungsgericht’,
Teil I, in Verfassungsblog on matters constitutional, 11 June 2013, at:
.
verfassungsblog.de/de/die-ezb-vor-dem-bundesverfassungsgericht-teil-1/#.Ufk9SFOzDhp,
and, in particular, idem, Teil II, available at
dem-bundesverfassungsgericht-teil-2/#.Ufk4LFOzDhp.
