Tornare alla separazione dei poteri e alla tutela dei diritti: il patriziato giurisdizionale del Bundesverfassungsgericht tedesco alla prova del NGEU e del MES

Abstract

In October 2022 the Second Senate of the Federal Constitutional Court (BverfG) dismissed as inadmissible a constitutional complaint challenging the domestic acts of approval of the «Agreement of 27 January 2021 Amending theTreaty Establishing the European Stability Mechanism» and the «Agreement of 27 January 2021 Amending the Agreement on the Transfer and Mutualisation of Contributions to the Single Resolution Fund». Moreover, with a judgment pronounced in December 2022, the BVerfG rejected two constitutional complaints directed against the «Act Ratifying the EU Own Resources Decision». The essay focuses on the main pillars of the constitutional reasoning of the Federal Constitutional Court which state that either of the amending agreements might lead to a transfer of sovereign powers to the ESM or to the European Union or that a (de facto) change of the framework of the EU integration agenda that might violate their rights under Art. 38(1) first sentence GG is at issue, and that the 2020 EU Own Resources Decision does not manifestly exceed the current European integration agenda and does not impair the overall budgetary responsibility of the Bundestag (and therefore does not need a request for a preliminary ruling from the Court of Justice of the European Union).