The German Federal Court and its first ultra vires review: a critique and a preliminary assessment of its consequences

The essay examines the ruling of the German Federal Court of 5 May 2020 concerning the secondary markets public sector asset purchase programme (PSPP), set up in 2015 and whose validity was confirmed by the Court of Justice in the Weiss case (C-493/17). Although there has been a crescendo on the conditions set out by the BundesVerfGericht (BVerfG) to the exercise of EU powers, the ruling which is commented, came as a surprise. Indeed, for the first time the German Court held a judgment of the Luxemburg court, in the context of a preliminary ruling, is not binding since the latter has acted ultra vires. The position of the BVerfG can be criticised since it undermines the authority of the Court of Justice and may cause “a crisis within the crisis.” Other critiques concern the way the principle of proportionality is interpreted, the same use of the doctrine of ultra vires review with respect to the ECB’s decision instituting the PSPP for its failure to adequately motivate the Programme.