Federico Fabbrini, After the OMT Case: The Supremacy of EU Law as the Guarantee of the Equality of the Member States (August 10, 2015). iCourts Working Paper Series, No. 29; University of Copenhagen Faculty of Law Research Paper No. 2015-11. Available at SSRN
The article analyzes the recent judgment of the European Court of Justice (ECJ) in the Gauweiler case, answering the first preliminary reference ever by the German Constitutional Court on the legality of the Outright Monetary Transaction (OMT) program of the European Central Bank (ECB). As the article explains, the ECJ rejected any possible claim of illegality of a key program devised by the ECB at the height of the Euro-crisis. However, because the German Constitutional Court had defined the OMT program as ultra vires, and had threatened to strike it down if the ECJ did not follow its advise, the article also reaffirms the principle of the supremacy of EU law, indicating that the German Constitutional Court is compelled to follow the ruling of the ECJ. As the article maintains, the supremacy of EU law is functional to ensure the equality of the member states before the law, preventing each country of the EU from cherrypicking which provisions of EU it likes or not. As the article suggests, respect of the principle of the supremacy of EU law – including by the German Constitutional Court – is ultimately in the interest of everyone, including of Germany.