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The Principle of Equality in EU Law pp 3–42Cite as

The Principle of Equality Among Member States of the European Union

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Abstract

The present chapter is aimed at reconstructing the evolution of the principle of equality among EU Member States, a principle first introduced by the Constitutional Treaty and now reaffirmed by the Treaty of Lisbon (Article 4(2) TEU). The research is divided into two parts, the first one analyzing the relation between equality and sovereignty and the second addressing the way the principle of equality among Member States relates to the principles of sincere cooperation, national identity and solidarity that, as we will see, influence the idea of equality itself. In summary, we will see whether the relations among the Member States of the European Union can be framed by the idea of equality among States as it was developed in international law or whether that idea should rather be reshaped in light of the Union’s supranational nature.

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Notes

  1. 1.

    For a historical reconstruction of the concept, see Kooijmans (1964), Kokott (2011), Lee (2004) and Dunoff (2012).

  2. 2.

    Gordon (2012).

  3. 3.

    De Vattel (1758), Bok. IV, Chap. 6, para 78.

  4. 4.

    According to Hassan (2006) it was the Peace of Westphalia that paved the way for the concept of sovereign equality among States.

  5. 5.

    According to Anand (2008), p. 14, the sovereignty and the equality among States ‘are really two sides of the same coin.’

  6. 6.

    See Vellano (2011).

  7. 7.

    Anand (2008), p. 14.

  8. 8.

    The principle was characterized by Oppenheim (1905), p. 161, as ‘an invariable quality derived from their International Personality.’

  9. 9.

    See Oppenheimer (1922) and Kingsbury (2014).

  10. 10.

    Cf. Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment, I.C.J. Reports 2012, 99: ‘The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order’ (para 57 of the ruling).

  11. 11.

    Kelsen (1944).

  12. 12.

    Kelsen (1945), p. 252.

  13. 13.

    Weinschel (1951).

  14. 14.

    Preuß (2008) underscores that the expression ‘equality of States’ has a merely formal meaning and rather means ‘equal sovereignty.’

  15. 15.

    Even the International Court of Justice has the power to hand down binding decisions, but as Weinschel underscores the judges who sit on that Court act in an individual capacity and not as representatives of States (Weinschel 1951).

  16. 16.

    Resolution 2625 XXV, 24 October 1970.

  17. 17.

    ‘In particular, sovereign equality includes the following elements: (a) States are judicially equal; (b) Each State enjoys the rights inherent in full sovereignty; (c) Each State has the duty to respect the personality of other States; (d) The territorial integrity and political independence of the State are inviolable; (e) Each State has the right freely to choose and develop its political, social, economic and cultural systems; (f) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.’

  18. 18.

    See, in this regard, Roth (2012).

  19. 19.

    See, in this regard, the observations offered by Craven (2005).

  20. 20.

    Accession to the World Trade Organization (WTO) after this multilateral trade system went into effect, on January 1, 1995, has been subject to so-called WTO-Plus commitments, requiring applicants to meet conditions more stringent than the ones required for membership under the original Marrakech scheme. In particular, countries with rich natural resources or countries that exploit their resources intensively (like China) have agreed not to introduce export tariffs on raw materials, this in contrast to the GATT 1947 system and the current WTO scheme, imposed no such conditions, allowing 1995 WTO members to levy whatever export tariffs they see fit. See Baroncini (2013).

  21. 21.

    Anand (2008), p. 25.

  22. 22.

    Under Article 2, UN members are required to assist the United Nations in any action the Organization takes under its Charter and to refrain from assisting ‘any State against which the United Nations is taking preventive or enforcement action.’

  23. 23.

    Kokott (2011), paras 44–47.

  24. 24.

    As concerns organizations entrusted with governing the world economy, see the considerations offered in Vellano (2011).

  25. 25.

    See O’Neill and Peleg (2000), Madeleine (1996) and Zamora (1980).

  26. 26.

    For a study of the different exceptions to the ‘One State, One Vote’ rule in international organizations, see Boutros-Ghali (1960).

  27. 27.

    Kelsen (1944), p. 209.

  28. 28.

    Boutros-Ghali (1960), p. 56. Cf. Focarelli (2007).

  29. 29.

    This is a point on which there is wide agreement. See, for example, Preuß (2008), Weinschel (1951), Dunoff (2012) and Lee (2004).

  30. 30.

    Preuß holds that this acquiescence evinces a constitutionalization of the international legal order (Preuß 2008). Gordon argues that limitations of sovereignty amount to a transfer of powers to ‘collective agencies’ (Gordon 2012).

  31. 31.

    Article 10 ECSC Treaty.

  32. 32.

    An example is the way the role of the European Parliament was framed by the Court in German Federal Constitutional Court (BVerfGE), 2 BvR 2134/92, 2 BvR 2159/92, 12 October 1993, where the issue was whether the Maastricht Treaty is compatible with the Grundgesetz, or Basic Law for the Federal Republic of Germany.

  33. 33.

    It should further be noted here that the weighting is based not on each country’s number of citizens but on that of its residents.

  34. 34.

    See Verola (2004).

  35. 35.

    See Jacqué (2010), pp. 334–335.

  36. 36.

    Article 16(4)–(6) TEU: ‘4. As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained. The other arrangements governing the qualified majority are laid down in Article 238(2) of the Treaty on the Functioning of the European Union. 5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions. 6. The Council shall meet in different configurations, the list of which shall be adopted in accordance with Article 236 of the Treaty on the Functioning of the European Union.’

  37. 37.

    Article 16 TEU, Article 238 TFEU, and Protocol No. 36.

  38. 38.

    See Declaration No. 7 and Council Decision 2009/857/EC (OJ 2009 L 314/73). ‘From 1 November 2014 to 31 March 2017, if members of the Council, representing (a) at least three-quarters of the population or (b) at least three-quarters of the number of Member States necessary to constitute a blocking minority […] indicate their opposition to the Council adopting an act by a qualified majority, the Council shall discuss the issue. […] The Council shall, in the course of these discussions, do all in its power to reach, within a reasonable time and without prejudicing obligatory time limits laid down by Union law, a satisfactory solution to address concerns raised by the members of the Council.’ The same provisions apply on a permanent basis ‘as from 1 April 2017, if members of the Council, representing (a) at least 55% of the population or (b) at least 55% of the number of Member States necessary to constitute a blocking minority […] indicate their opposition to the Council adopting an act by a qualified majority.’ On this question, see Jacqué (2010), p. 344.

  39. 39.

    See Articles 48, 82, and 83 TFEU.

  40. 40.

    Verola (2004).

  41. 41.

    Preamble and Article 1 TEU; preamble TFEU; and preamble of the Charter of Fundamental Rights of the European Union .

  42. 42.

    Ansong (2012).

  43. 43.

    See, for example, ECJ, Case C-258/98 Tanja Kreil v Bundesrepublik Deutschland EU:C:2000:2 and ECJ, Case C-399/11 Stefano Melloni v Ministerio Fiscal EU:C:2013:107.

  44. 44.

    See Rossi (2014a), p. 5.

  45. 45.

    See the authoritative Economist column titled Charlemagne, which on March 13, 2010, shortly after President Barroso was first elected, characterized him as ‘an intergovernmentalist in charge of the federalist bit of the machine.’ Source: http://www.economist.com/blogs/charlemagne/2010/03/herman_van_rompuy_pragmatist (accessed 31 December 2016).

  46. 46.

    The Protocol on the enlargement of the European Union, annexed to the Treaty of Nice, provided that when the EU would grow to 27 members, there would be one commissioner for each Member State.

  47. 47.

    Article 17(4) TEU.

  48. 48.

    Under Article 244 TFEU, ‘(a) Member States shall be treated on a strictly equal footing as regards determination of the sequence of, and the time spent by, their nationals as members of the Commission; consequently, the difference between the total number of terms of office held by nationals of any given pair of Member States may never be more than one; (b) subject to point (a), each successive Commission shall be so composed as to reflect satisfactorily the demographic and geographical range of all the Member States.’

  49. 49.

    Decision 2013/272/EU (OJ 2013 L 165/98).

  50. 50.

    See, in this regard, Magnette and Nikolaïdis (2005), and Bunse et al. (2006).

  51. 51.

    The EP’s construal of the rule has prevailed despite the fact that the Treaty of Lisbon is not unambiguous in this regard, a matter regulated under Article 17(7) TEU: ‘Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within 1 month propose a new candidate who shall be elected by the European Parliament following the same procedure.’ See also Declaration No. 11, relative to Article 17(6)(7) TEU: ‘The Conference considers that, in accordance with the provisions of the Treaties, the European Parliament and the European Council are jointly responsible for the smooth running of the process leading to the election of the President of the European Commission. Prior to the decision of the European Council, representatives of the European Parliament and of the European Council will thus conduct the necessary consultations in the framework deemed the most appropriate. These consultations will focus on the backgrounds of the candidates for President of the Commission, taking account of the elections to the European Parliament, in accordance with the first subparagraph of Article 17(7). The arrangements for such consultations may be determined, in due course, by common accord between the European Parliament and the European Council.’

  52. 52.

    On that question, see Cannone (2005), Rossi (2007), and Rossolillo (2014).

  53. 53.

    A more extensive analysis is present in Wouters and Schmitt’s Chap. 2 in this volume.

  54. 54.

    That possibility is ruled out, however, if the agreement under which the limitations are introduced presents any of the invalidating grounds provided for in the Vienna Convention on the Law of Treaties , such as error, fraud, coercion, conflict with a peremptory norm of general international law, or violation of a rule of a State’s internal law of fundamental importance.

  55. 55.

    Examples are the Maastricht Protocol on social policy, giving the United Kingdom the ability to opt out of that policy, and the protocols annexed to the Treaty of Amsterdam: under these protocols, governing the position of the United Kingdom, Ireland, and Denmark, these countries may opt out of the European Area of Freedom, Security, and Justice (they ‘shall not take part in the adoption by the Council of proposed measures pursuant to Title IIIa of the Treaty establishing the European Community’). The same opt-outs carry over to the protocols annexed to the Treaty of Lisbon. A different matter is Protocol 30, also annexed to the Treaty of Lisbon and regulating the position of Poland and the United Kingdom relative to the European Charter of Fundamental Rights (CFR). Indeed, it wouldn’t be accurate to characterize this as an opt-out proper, or even as a form of differentiated integration, for on the one hand the protocol says that the ‘laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom’ cannot be subjected to judicial review in light of ‘the fundamental rights, freedoms and principles’ set forth in the CFR, but on the other hand it also reiterates that Poland and the United Kingdom are fully subject to the founding Treaties, and to ‘Union law generally,’ and are accordingly bound to respect fundamental rights.

  56. 56.

    ECJ, Joined Cases C-411/10 and C-493/10 N.S. EU:C:2011:865 and ECJ, Case C-617/10 Åklagaren v Hans Åkerberg Fransson EU:C:2013:105.

  57. 57.

    In judgment of 3 September 2008 (ECJ, Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities EU:C:2008:461, paras 281–285), the ECJ found that the obligations imposed on the EU by international law cannot trump the fundamental principles of the EU, and it also underscored the autonomy of the EU legal system and the fact that the allocation of powers within that system cannot be modified by an international agreement.

  58. 58.

    These treaties are ‘external’ to the EU system, and it should be noted in this regard that only when the United Kingdom refused to modify the EU Treaty did it prove necessary to resort to that strategy. See Rossi (2012).

  59. 59.

    The principle of sincere cooperation expressly provides that these agreements cannot invalidate EU law (see Article 2 of the Fiscal Compact ). See, in this regard, Casolari (2014), pp. 127–128, arguing that these agreements have in any event made it possible to give rise to forms of extra ordinem solidarity among Member States in the face of an internal impasse (a similar argument can also be found in McDonnell 2014).

  60. 60.

    Enhanced cooperation has so far been used to adopt the EU regulation on divorce (Council Regulation (EU) No. 1259/2010 of 20 December 2010, Implementing Enhanced Cooperation in the Area of the Law Applicable to Divorce and Legal Separation, OJ 2010 L 343/10) and, more recently, in a proposal for a directive aimed at taxing financial transactions (Proposal for a Council Decision Authorising Enhanced Cooperation in the Area of Financial Transaction Tax, COM(2012) 631 final/2). A further example is Council Decision of 10 March 2011—Authorising Enhanced Cooperation in the Area of the Creation of Unitary Patent Protection (2011/167/EU, OJ 2011 L 76/53)—which Italy and Spain subsequently challenged before the ECJ, citing the question of ‘language arrangements for a European intellectual property right.’ See ECJ, Joined Cases C-274/11 and C-295/11 Kingdom of Spain and Italian Republic v Council of the European Union EU:C:2013:240. The Court found against Italy and Spain.

  61. 61.

    It should also be noted that the European Parliament (EP) has a role to play in the process for adopting acts by which enhanced cooperation is enacted, for EP resolutions pass with MEPs elected by nonparticipating States, too.

  62. 62.

    The general principles are contained in Article 20 TEU, while the more specific matters are governed by reference to Articles 326–334 TFEU. For a commentary on these provisions, see Rossi (2014b).

  63. 63.

    ECJ, Case C-265/95 Commission of the European Communities v French Republic EU:C:1997:595.

  64. 64.

    ECJ, Case C-370/12 Thomas Pringle v Government of Ireland, Ireland and the Attorney General EU:C:2012:756.

  65. 65.

    See ECJ, Case 13/63 Italian Republic v Commission of the European Economic Community EU:C:1963:20; ECJ, Case C-44/94 The Queen v Minister of Agriculture, Fisheries and Food, ex parte National Federation of Fishermen’s Organisations and others and Federation of Highlands and Islands Fishermen and Others EU:C:1995:325.

  66. 66.

    In the case Italian Republic v Commission of the European Economic Community (ECJ, Case 13/63, supra n. 65), the Court found that: ‘the different treatment of non-comparable situations does not lead automatically to the conclusion that there is discrimination. An appearance of discrimination in form may therefore correspond in fact to an absence of discrimination in substance. Discrimination in substance would consist in treating either similar situations differently or different situations identically. […] finally, in authorizing protective measures, the commission is entitled to make a distinction between countries rather than between undertakings in the common market when there are reasonable grounds for such a distinction’ (para 4b). Compare also ECJ, Case 203/86 Kingdom of Spain v Council of the European Communities EU:C:1988:420, para 25: ‘It should be noted in the first place that the Court has consistently held that the principle of non-discrimination between producers or consumers in the Community, laid down in the second subparagraph of Article 40(3) of the [EEC] Treaty, means that comparable situations are not to be treated differently and that different situations are not to be treated alike unless such treatment is objectively justified.’

  67. 67.

    ECJ, Case 231/78 Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland EU:C:1979:101.

  68. 68.

    See, for example, ECJ, Case C-273/04 Republic of Poland v Council of the European Union EU:C:2007:622, paras 87–88: ‘[…] it is undisputed in the present case that the agricultural situation in the new Member States was radically different from that in the old Member States, which justified a gradual application of Community rules, in particular those rules relating to direct support schemes, in order not to disrupt the necessary on-going restructuring in the agricultural sector of the new Member States. It follows from these considerations that the applicant is not in a situation comparable to that of the old Member States which have unrestricted access to the direct support schemes, and that prevents any valid comparison being made […].’

  69. 69.

    ECJ, Case 39/72 Commission of the European Communities v Italian Republic EU:C:1973:13.

  70. 70.

    The principle of conferral comes up in Articles 5(1), (2) TEU and 7 TFEU. Also testifying to the Member States’ deep concern with the principle of conferral are the protocols and declarations annexed to the Treaty of Lisbon. This is true in particular of Article 2 of Protocol No. 21, on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice; Protocol No. 30, on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom; Declaration No. 1, concerning the Charter of Fundamental Rights of the European Union; Declaration No. 13, concerning the common foreign and security policy ; Declaration No. 18, in relation to the delimitation of competences; Declaration No. 24, concerning the legal personality of the European Union; Declaration No. 31, on Article 156 of the Treaty on the Functioning of the European Union; Declaration No. 42, on Article 352 of the Treaty on the Functioning of the European Union; and Declaration No. 53 by the Czech Republic, on the Charter of Fundamental Rights of the European Union .

  71. 71.

    See Rossi (2014a), p. 6.

  72. 72.

    Article 4(2) TEU also provides that ‘national security remains the sole responsibility of each Member State,’ a qualification that is not part of the language of Article I-5 of the Treaty Establishing a Constitution for Europe.

  73. 73.

    On the principle of sincere cooperation, see Blanquet (1994), Casolari (2014) and Klamert (2014).

  74. 74.

    See Sect. 1.2.1 above.

  75. 75.

    A list of the main judgments can be found in Iannone (2014).

  76. 76.

    ECJ, Case C-340/89 Irène Vlassopoulou v Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg EU:C:1991:193; ECJ, Case C-238/98 Hugo Fernando Hocsman v Ministre de l’Emploi et de la Solidarité EU:C:2000:440; ECJ, Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal S.p.A. EU:C:1978:49; and ECJ, Case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and Others EU:C:1990:257. For a further discussion, see Bitter (2002).

  77. 77.

    Article 4(3) TEU, first subparagraph: ‘The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.’ Article 4(3) TEU, second subparagraph: ‘The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.’

  78. 78.

    ECJ, Case C-265/95 Commission of the European Communities v French Republic EU:C:1997:595.

  79. 79.

    Klamert (2014), p. 250.

  80. 80.

    On the principle of respect of Member States’ identities, see Besselink (2010), p. 42, Guastaferro (2012), Saiz Arnaiz and Alcoberro Llivina (2013). On the ECJ case law relative to the principle, see Di Federico (2014).

  81. 81.

    For an overview of this evolution, see Magnani (2006) and Guastaferro (2012).

  82. 82.

    See, in that regard, Martinico and Pollicino (2012).

  83. 83.

    ‘The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels […].’

  84. 84.

    According to Manzella (2013), p. 69 ff., Article 4(2) TEU draws a structural and functional boundary limiting the ability of the EU system to interfere in those of the Member States. On the same provision, see also Guastaferro (2013), p. 192 ff.

  85. 85.

    This expression was first used by the French Conseil Constitutionnel in decision no. 2004-505 DC in connection with the Constitutional Treaty. On the question of national constitutional identities, see Magnani (2006), Von Bogdandy and Schill (2011), Safjan (2012) and Villani (2011).

  86. 86.

    On this question, see Rossi (2008).

  87. 87.

    See, for example, ECJ, Case C-473/93 Commission of the European Communities v Grand Duchy of Luxemburg EU:C:1996:263; ECJ, Case C-571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others EU:C:2012:233; ECJ, Case C-258/98 Tanja Kreil v Bundesrepublik Deutschland, supra n. 43; ECJ, Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien EU:C:2010:806; and ECJ, Case C-399/11 Stefano Melloni v Ministerio Fiscal EU:C:2013:107.

  88. 88.

    See ECJ, Case C-379/87 Anita Groener v Minister for Education and the City of Dublin Vocational Educational Committee EU:C:1989:599; ECJ, Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn EU:C:2004:614; ECJ, Case 51/08 European Commission v Grand Duchy of Luxemburg EU:C:2011:336; ECJ, Case C-391/09 Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others EU:C:2011:291; ECJ, Case C-222/07 Unión de Televisiones Comerciales Asociadas (UTECA) v Administración General del Estado EU:C:2009:124; and ECJ, Case C-244/06 Dynamic Medien Vertriebs GmbH v Avides Media AG EU:C:2008:85.

  89. 89.

    See, for example, ECJ, Case C-213/07 Michaniki AE v Ethniko Symvoulio Radiotileorasis and Ypourgos Epikrateias EU:C:2008:731.

  90. 90.

    See Von Bogdandy and Schill (2011), p. 1417.

  91. 91.

    German Federal Constitutional Court (BVerfGE), 16 BvG 30, June 2009, BVE 2/08, but see also German Federal Constitutional Court (BVerfGE), 2 BvG, 14 January 2014, BvR 2728/13, on so-called outright monetary transactions (OMTs) .

  92. 92.

    Polish Constitutional Tribunal, Ref. No K 32/09, 24 November 2010, http://trybunal.gov.pl/fileadmin/content/omowienia/K_32_09_EN.pdf (accessed 31 December 2016).

  93. 93.

    ECJ, Case C- 399/09 Marie Landtová v Česká správa socialního zabezpečení EU:C:2011:415.

  94. 94.

    In a judgment of 31 January 2012 that draws inspiration from the case law of the Federal Constitutional Court of Germany, the Constitutional Court of the Czech Republic underscored that national constitutional courts retain an essential role as guardians of constitutionality even as concerns EU law and even in cases involving the issue of whether EU institutions are acting beyond their powers. The Czech Court also argued that the ECJ failed to adequately take the 1993 Dissolution of Czechoslovakia into account: had the ECJ done so, it would have found that EU law did not apply to the case at hand. See Constitutional Court of the Czech Republic, Pl.ÚS 5/12, 31 January 2012, Slovak Pensions XVII: Application of the agreement between the CR and the SR on Social Security; obligations in international and EU law, http://www.usoud.cz/en/decisions/?tx_ttnews%5Btt_news%5D=37&cHash=f5c96e0e4789a7fc3b2eecaca01bc6b3 (accessed 31 December 2016).

  95. 95.

    Constitutional Court of Portugal, Judgment No. 187/2013, http://www.tribunalconstitucional.pt/tc/acordaos/20130187.html?impressao=1.%20Su%20questa%20decisione%20v.%20J.%20WATSON,%20Bailout%20or%20Down%20and%20Out?%20IBA%20Global%20Insight%202013,%20Giugno/Luglio,%20n.7.%20http://www.ibanet.org/Article/Detail.aspx?ArticleUid=2459912b-0ff2-4439-9c62-bb3b91f4508d (accessed 31 December 2016).

  96. 96.

    ECJ, Case C-617/10 Åklagaren v Hans Åkerberg Fransson, supra n. 56. On this judgment, see Skouris (2013) and Lazzerini (2013).

  97. 97.

    German Federal Constitutional Court (BVerfGE), 1 BvR 1215/07, 24 April 2013, para 2, http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2013/04/rs20130424_1bvr121507.html (accessed 31 December 2016). See also the Editorial Comments (2013).

  98. 98.

    On this question, see Rossi (2014c). The German Court presented the ECJ with a series of queries on whether the ECB decision is compatible with the EU Treaty, but the queries sound more like indictments than requests for clarification. Indeed, the BVG points out several reasons why it believes the ECB program fails to meet that standard: the program does not (a) place any cap on the amount that can be spent purchasing bonds from any single State; (b) set a minimum period from the time the bonds are issued on the primary market to the time they are made available on the secondary market (this makes it difficult to assess their market value); (c) prohibit bondholders from holding their bonds beyond maturity; (d) require bonds to have any minimum rating before they are issued; or (e) accord any preferred-creditor status to the ECB or the European System of Central Banks (ESCB), both of which would thus find themselves competing with private creditors that also hold bonds issued by a defaulting State. In its own defence, the ECB pointed out that it is part of its mandate to maintain a stable euro and that this may make it necessary to deploy a tool capable of counteracting any market selloff sparked by fears that a EU Member State should default on its debt. Such fears can increase yield spreads, thereby undermining the monetary policy measures available to the ECB and the ESCB, and a tool of this sort can be used for member states that should enter into and uphold agreements with the European Stability Mechanism (ESM) . In the view of the ECB, its bond-buying program rests on a strong enough guarantee by virtue of the fact that outright monetary transactions are subject to the obligations that each member state has under the Treaty Establishing the ESM .

  99. 99.

    German Federal Constitutional Court (BVerfGE), BVG 123, 30 June 2009. On that judgment, see Rossi (2009).

  100. 100.

    German Federal Constitutional Court (BVerfGE), BVG 123, 30 June 2009, supra n. 99, para 241: ‘The ultra vires review as well as the identity review may result in Community law or, in the future, Union law being declared inapplicable in Germany’ (English translation provided by the Court itself). That is because the German Court claims for itself the power to decide whether acts by the EU are consistent with German constitutional identity, a claim reiterated in the preceding para 240 of the same judgment: ‘Furthermore, the Federal Constitutional Court reviews whether the inviolable core content of the constitutional identity of the Basic Law pursuant to Article 23.1 third sentence in conjunction with Article 79.3 of the Basic Law is respected […].’

  101. 101.

    ECJ, Case C-62/14 Gauweiler EU:C:2015:400.

  102. 102.

    German Federal Constitutional Court (BVerfGE), 2 BvR 2278/13, 21 June 2016. An English-language summary is available at http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2016/06/rs20160621_2bvr272813.html (accessed 31 December 2016).

  103. 103.

    According to the Court, this concerns the protection of the fundamental rights’ core of human dignity (Article 1 GG) as well as the fundamental principles that characterise the principles of democracy, of the rule of law, of the social state, and of the federal state within the meaning of Article 20 GG.

  104. 104.

    There is a prior case in which the German Constitutional Court asserted the power to find that the ECJ has acted ultra vires in rendering a judgment: German Federal Constitutional Court (BVerfGE), 1 BvR 1215/07, 24 April 2013, supra n. 97; see also the Editorial Comments (2013) and Rossi (2013).

  105. 105.

    See ECJ, Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, supra n. 57.

  106. 106.

    Listed among the objectives listed in that article is for the EU ‘to assert its identity on the international scene.’

  107. 107.

    ‘The Union is founded on the values of respect for human dignity , freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’

  108. 108.

    On the principle of solidarity, see Molinier (2005), p. 250 ff. and Boutayeb (2011).

  109. 109.

    McDonnell (2014).

  110. 110.

    ‘It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country.’

  111. 111.

    In this regard see Klamert (2014).

  112. 112.

    See Casolari (2014).

  113. 113.

    See ECJ, Case 209/83 Ferriera Valsabbia SpA v Commission of the European Communities EU:C:1984:274.

  114. 114.

    ECJ, Case 250/84 Eridania Zuccherifici Nazionali S.p.A. and others v Cassa Conguaglio Zucchero and the Italian Ministry of Finance and Treasury EU:C:1986:22; and ECJ, Case C-105/03 Criminal proceedings against Maria Pupino EU:C:2005:386.

  115. 115.

    ECJ, Case 39/72 Commission of the European Communities v Italian Republic EU:C:1973:13.

  116. 116.

    ECJ, Joined Cases 6 and 11/69 Commission of the European Communities v French Republic EU:C:1969:68.

  117. 117.

    ‘Without prejudice to any other procedures provided for in the Treaties, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.’

  118. 118.

    See, in that regard, Borger (2013).

  119. 119.

    ECJ, Case C-265/95 Commission v French Republic EU:C:1997:595.

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  1. Alma Mater Studiorum – Università degli Studi di Bologna, via Zamboni 22, 40126, Bologna, Italy

    Lucia Serena Rossi

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    Lucia Serena Rossi

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    Federico Casolari

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Rossi, L.S. (2017). The Principle of Equality Among Member States of the European Union. In: Rossi, L., Casolari, F. (eds) The Principle of Equality in EU Law. Springer, Cham. https://doi.org/10.1007/978-3-319-66137-7_1

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