The Danger of Judicial Nationalism
| Date | 01 December 2021 |
| DOI | 10.1177/1023263X211063761 |
| Author | Phedon Nicolaides |
| Published date | 01 December 2021 |
| Subject Matter | Editorial |
The Danger of Judicial
Nationalism
Phedon Nicolaides*
Courts are not always right. But we rely on them to resolve disputes in the belief that, even when
they get it wrong, they at least act without any systematic bias. This presumption is fundamental for
the functioning of the European Union, given the diverse interests of its Members. EU courts are
supposed to interpret EU law impartially and ensure that it is applied uniformly, regardless of
national interests or preferences. Yet this presumption is increasingly challenged by national
courts claiming to protect their national constitutional values from being undermined by EU law.
In 2014, when the German Federal Constitutional Court (Bundesverfassungsgericht or BVerfG)
submitted to the Court of Justice of the EU its first ever request for a preliminary ruling, it did not
ask for guidance on how to interpret EU law. Instead, it asked the Court of Justice to confirm the
conclusion that it had already reached.
1
The BVerfG considered that the European Central Bank
violated Article 123 TFEU by purchasing government bonds through the so-called ‘outright mone-
tary transactions’.
Advocate General Cruz Villalon in his opinion, noted that ‘the BVerfG has developed a body of
case-law pursuant to which it carries out a review of the constitutionality of acts of the institutions
and bodies of the European Union when the acts concerned are obviously ultra vires or affect “con-
stitutional identity”, as it results from the “eternity clause”in Article 79(3) of the German Basic
Law.’
2
In that particular case, the BVerfG ‘start[ed] from a finding of principle that there ha[d] been an
ultra vires act on the part of an EU body. More specifically, under national law, it is a question of
“an obvious and structurally significant ultra vires act”’.
3
*
Maastricht University Faculteit der Rechtsgeleerdheid, Maastricht, Netherlands
Corresponding author:
Phedon Nicolaides, Maastricht University Faculteit der Rechtsgeleerdheid, Bouillonstraat, Maastricht, 6200 MD,
Netherlands.
E-mail: phedon.nicolaides@coleurope.eu
1. Case C-61/14 Gauweiler and Others v. Deutscher Bundestag, EU:C:2015:400.
2. Opinion of Advocate General of Cruz Villalon in case C-61/14 Gauweiler and Others v. Deutscher Bundestag, EU:
C:2015:7. See also P. Craig, ‘The ECJ and ultra vires action: A conceptual analysis’,48Common Market Law
Review (2011), p. 395-497; M. Payandeh, ‘Constitutional review of EU law after Honeywell: Contextualizing the rela-
tionship between the German Constitutional Court and the EU Court of Justice’,48Common Market Law Review
(2011), p. 9–38.
3. Supra note 2, para. 46.
Editorial
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(6) 741–743
© The Author(s) 2021
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DOI: 10.1177/1023263X211063761
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