Europa Felix

What's left of the law of integration? | Julio Baquero Cruz

October 25, 2022 Julio Baquero Cruz, Felix Ronkes Agerbeek
Europa Felix
What's left of the law of integration? | Julio Baquero Cruz
Show Notes Transcript

My guest for this episode is Julio Baquero Cruz — novelist, translator, professor of EU law, and member of the Legal Service of the Commission.

In 2018 he published a book called ‘What’s left of the law integration?’ in which he observes that the European Union is going through a difficult period, a traversée du désert. He describes the waning of the initial impetus behind European integration and a resurgence of the idea that the nation state is the ultimate political unit. He notices signs of decline in European law, even signs of disintegration. But the book is not defeatist. He also describes acts of resistance, especially in the case-law of the Court of Justice. More importantly, he encourages us to look again at the beginnings of the law of integration to find new meaning for European law today.

Julio's book combines philosophical contemplation with legal-technical detail, and so does my conversation with him. We talk about one of the founding fathers of the law of integration, Pierre Pescatore. We discuss political speeches, from Thatcher to Merkel to Scholz. We take a deep dive into the Weiss judgment of the German Constitutional Court. We talk about the theory that European integration was mainly a means of ‘rescuing’ the nation state. And finally, I ask him how we can reclaim the law of integration.

Mentioned:

Book recommendations:

Comments? Guest suggestions? Email me at felix@europafelix.eu.

FELIX RONKES AGERBEEK: You’re listening to Europa Felix. I’m Felix Ronkes Agerbeek and my guest for this episode is Julio Baquero Cruz — novelist, translator, professor of EU law, and member of the Legal Service of the Commission.

In 2018 he published a book called ‘What’s left of the law integration?’ in which he observes that the European Union is going through a difficult period, a traversée du désert. He describes the waning of the initial impetus behind European integration and a resurgence of the idea that the nation state is the ultimate political unit. He notices signs of decline in European law, even signs of disintegration. But the book is not defeatist. And he also describes acts of resistance, especially in the case-law of the Court of Justice. And more importantly, he encourages us to look again at the beginnings of the law of integration to find new meaning for European law today.

Julio’s book combines philosophical contemplation with legal-technical detail, and so does my conversation with him. We talk about one of the founding fathers of the law of integration, Pierre Pescatore. We discuss political speeches, from Thatcher to Merkel to Scholz. We take a deep dive into the Weiss judgment of the German Constitutional Court. We talk about the theory that European integration was mainly a means of ‘rescuing’ the nation state. And finally, I ask him how we can reclaim the law of integration.

I should mention that Julio and I both work for the European Commission, but that of course, on this show, we speak in a personal capacity.

Here is Julio Baquero Cruz.

Julio, welcome to the show.

JULIO BAQUERO CRUZ: Thank you.

FELIX RONKES AGERBEEK: I want to start from the beginning with a very basic question, namely: What is ‘the law of integration’? And where does this term, where does it come from?

JULIO BAQUERO CRUZ: The term ‘the law of integration’ was coined by Pierre Pescatore in a book he published in 1972 and Pescatore was the first one who said that the phenomenon of integration — economic, political — was followed or matched by a phenomenon of legal integration. For Pescatore and I think for many scholars of Community law in the early period all the way until the 80s or 90s, the law of integration was embodied or reflected in a series of legal structures: the preliminary rulings procedure, primacy, direct effect, state liability. There was a sort of building of legal principles that would keep the Communities together as a legal reality — as an autonomous legal reality.

FELIX RONKES AGERBEEK: And what was the rationale for this? What does ‘integration’ in this sense try to do?

JULIO BAQUERO CRUZ: What integration wants to do, tries to do, is to of course limit the sovereignty of the Member States. To frame them, to frame their behaviour, their very existence in a higher overarching legal and institutional framework so that the horrors, the barbarism of the 20th century would not be seen again in the heart of, in brackets I say, ‘civilisation’. So I think that’s… that was the aim of the whole, of the whole enterprise. I think it’s important to realise that without the wars this new configuration of relationships between states and this new conception of the state would have been totally impossible. The state, by being part of the Union, changes its nature. This is what integration is about. And the Union frames and tames the state which is no longer a sovereign unit because its sovereignty is limited, pooled and to that extent exercised together in common institutions and with the own procedures of the Union.

FELIX RONKES AGERBEEK: Of course, there’s almost nobody left who has first-hand experience of the horrors, the barbarism that acted as the catalyst for integration. And in your book you point out that — and I quote: ‘[W]e increasingly detach European integration and its law from the extreme conditions that made them possible.’ You write: ‘We do remember …, but at the same time we seem to have become insensitive to the lasting force of that historical experience, and do not realise that the world we live in was built upon those ruins and mountains of corpses, and because of them.’ 

JULIO BAQUERO CRUZ: Yeah, this is the Benjaminian idea of history. Walter Benjamin, the philosopher, wrote that wonderful piece on the 10 theses, I think, on the philosophy of history, and his idea, which sounds a bit gloomy, but I think it’s quite realistic, is that history is made of a succession of ruins. And that every document of civilisation is actually also a document of barbarism. And I make the point that the Treaties should also be seen, not only as documents of, not civilisation, but the strife, the struggle for civilisation — for having civilised relations between nations —, also they have to been seen as documents of the barbarism that made them possible. And if we don’t see that, we miss that connection, we miss that point. We start to see the Treaties as something, you know, purely technical, cold, about representing just the interests of the Member States. The sort of view that some Member States sometimes are tempted to have about the European Union. So yes, we remember, we know about the history, we know about the Shoah, we know about the war and the casualties. What we don’t have is the feelings that the generation that lived through that, the kind of education, sentimental education let’s say, what they learned about the state — about the destructive power of the state. We don’t have those feelings. And that means that we may lack the ability to understand the meaning, I mean the deep meaning of the structures that we have inherited. And when I talk about those structures I think about the Community method, what it means by allowing to adopt decisions by majority and not through unanimity. Or I think about ‘direct effect’ or ‘primacy’, something that allows for the creation of a supranational legal order that frames in a binding way the way states and peoples organise their relationships in a common legal area. I think that’s quite revolutionary and without the wars, the two of them, all of that would have been impossible. I think the wars were an eye-opener about the increasingly destructive nature of insulated states in the age of ideologies, yeah, which was the 20th century, and our century still remains an age of ideologies — different ideologies but still with the same destructive potential.

FELIX RONKES AGERBEEK: You mentioned the late Pierre Pescatore. He belonged to a generation that had the ‘sentimental education’ you talked about. He belonged also to the circle of lawyers that built and consolidated the law of integration. Part of the group of legal experts that drafted the Rome Treaty. Judge at the Court of Justice for almost twenty years. And you knew him personally. How did you two meet?

JULIO BAQUERO CRUZ: That’s a curious story. When I was studying EU law first in Bruges and then in Florence I read his book ‘Le Droit de l’intégration’, the law of integration, which I found was fantastic. He was extremely clear and coherent and integral in his legal thinking. No concessions. No half-measures. And I read a lot of his articles as well. Let’s say I felt a strong affinity with him in my studies. When I read his things I thought: hm, I agree with that, I like that, this is the way I like to think about the law. And this made me want to meet him. And so, when I started working at the Court, at the end of 2000, they gave me at the Court — I don’t know if this is done today — but they gave me a list with the addresses and names of all the former members of the Court. Today that maybe would be against the GDPR [General Data Protection Regulation]…

FELIX RONKES AGERBEEK: I think so.

JULIO BAQUERO CRUZ: …unless they had consented of course, maybe they would consent. But it was nice to have it and I gathered some courage and I called the telephone of Mr Pescatore. It was his wife who answered and immediately he took the phone and he invited me for lunch at his study. He was retired then of course and he had a place to work and study, full of books, not far away from his house. And for the four years I spent at the Court we used to meet every month, so I met him many many times, and we had very very fruitful conversations. I learned a lot from him.

FELIX RONKES AGERBEEK: What was that like? What did you talk about? 

JULIO BAQUERO CRUZ: Well it was a two-way exchange all the time because he was extremely down-to-earth, extremely modest, and he listened. He listened to me and I… it was astonishing, I mean I was in my twenties and I was surprised that he would listen to me. He was telling me things about the Court. And when we talked about law our conversations were about what had happened in the 60s, in the 70s, so the creation and consolidation of the law of integration or he wanted to know what was going on at the Court. Another topic that came later was the European Convention. I was following at the time the European Convention at the cabinet of the President and so he was very interested in knowing what was going on with the European Convention. Those were our legal conversations. And he told me a lot of secrets. He said to me once, he said: ah, you are bound by the secrecy of deliberations because all the référendaires at the Court have this obligation not to reveal these secrets, so I can tell you this and I can tell you that. And I have never told anybody all these secrets…

FELIX RONKES AGERBEEK: Until today on this podcast!

JULIO BAQUERO CRUZ: No I cannot tell the stories because they were given…

FELIX RONKES AGERBEEK: In confidence.

JULIO BAQUERO CRUZ: Yeah.

FELIX RONKES AGERBEEK: So Pescatore’s book was called ‘The law of integration’. Your book, the title is, ‘What’s left of the law of integration’…

JULIO BAQUERO CRUZ: The book has a question mark. It doesn’t explain what’s left of the law of integration. It asks the question. And it’s a real question because at some point in the 90s I think some of the elements of this law of integration started to be contested from various fronts, in legal terms and also in political terms. And so, after that period I think the practice of the law of integration has been a practice of resistance. Not so much building but resisting — and keeping what had been built in terms of main principles in the 60s, 70s, 80s. That’s at least the approach I try to explore in the book. 

FELIX RONKES AGERBEEK: And you observe that in recent times there has been a waning sense of what integration is about…

JULIO BAQUERO CRUZ: We’re living in that moment. We’ve been living in that moment for maybe more than a decade. That the political classes I think, especially, sometimes don’t see what the Union is about.

FELIX RONKES AGERBEEK: But hasn’t the tension between ‘supranationalism’ and ‘intergovernmentalism’, hasn’t that been there from the outset?

JULIO BAQUERO CRUZ: It’s always there and it’s inherent to the organisation. It’s a tension you find in every kind of multi-level system or federal system and it will remain. Of course not everything in the Treaties follows the model of integration. This is an ‘ideal-type’. For example in Article 114 [TFEU], the legal basis on the internal market, wherever you have the ordinary legislative procedure, that’s the notion of integration in institutional terms. But the Treaty also has several islands of inter-governmentalism. That’s the opposite or the other end, the other ‘ideal-type’ of a conception of relationships between the states that is not reframed by this notion of integration. That is simply a matter of cooperation, agreement, unanimously, when they want to agree. But if you have unanimity, there is no transfer of sovereignty. This is clear in the case-law of many constitutional courts. Because you can always veto, block, so the power remains with the state. There is no recognition of a broader, wider instance of political power that can bind you against your will. The problem I see is that the element of integration, the element of the Community method, if it’s not valued, if we don’t understand what it means and why it’s there, the Union could become something different — a mere organisation of cooperation where states may decide things in common if they want, but only when their interests correspond or converge sufficiently.

FELIX RONKES AGERBEEK: But is that new, is that something that has changed?

JULIO BAQUERO CRUZ: I think that has changed, the perception of what the European Union is about has changed.

FELIX RONKES AGERBEEK: And why is that?

JULIO BAQUERO CRUZ: There are various reasons. One of them is this lack of historical memory. Another issue is the enlargement. The Member States that came into the Union later, even much later, have a different view, a different story. They were disconnected from this long story of integration. If they think about it, if they thought about it, they would come to see it in the same way. Even strongly. But there is a disconnection there, there is an interrupted discourse. Also because the element of the Member States through the enlargement is bigger, so in relative terms the Member State is a massive presence. When you have 27 judges, or 27 members of the Commission, 27 members in the Council, it becomes much more an organisation of Member States. I don’t know if I express my idea.

FELIX RONKES AGERBEEK: Yeah, I understand what you mean, the relative weight of the Member States vis-à-vis the common organisation has become much bigger. It’s actually quite easy to see when you’re working in the European institutions.

You mentioned earlier the political classes. And indeed it seems that the term ‘integration’ — ‘European integration’ — has disappeared from political discourse…

JULIO BAQUERO CRUZ: There is a speech which I think marks the end of talk about integration and that’s the speech of Chancellor Merkel at the College of Europe in 2010. And it’s all about cooperation. We do things together, and there is a ‘Union method’, she says there I think for the first time, it’s on a par with the Community method, so the Community method doesn’t have any advantage or any primacy. You can, if you like you can apply the intergovernmental method as well. You go to the European Council and suddenly you are in a different world. 

FELIX RONKES AGERBEEK: I reread this speech before our talk and one of the things that actually struck me about it, is that she speaks about this notion of coordination, of a European Union method, maybe — if necessary — combined with the Community method. And then as an example — and I thought that was quite striking — she gives energy policy.

JULIO BAQUERO CRUZ: Yes.

FELIX RONKES AGERBEEK: And I thought, historically, that’s interesting because of course the coal and steel community is where it all started, it was very much the birth of the Community method, but also fast forward to today, where again, in the context of a war, we see that energy is one of these big common challenges and that we’re so interdependent… I guess what I’m trying to say is that this is precisely one of those areas where it’s vital to think in terms of the broader interest of the Union instead of… some sort of common denominator of national interests. 

JULIO BAQUERO CRUZ: Yes. She sees the Treaty of Lisbon as having changed the institutional framework, which is a rather daring proposition, I think, because the Treaty of Lisbon is just a codification of the institutional framework. And then she seems to give the impression that at any given point in time you could shift a matter to the European Council and decide in a different mode, which is the mode of cooperation between reconstructed sovereign states. And that trumps completely the Community method. The Court is not mentioned at all in her speech. Integration is not mentioned even once. I mean if you compare that speech with previous speeches of German chancellors and so on and so forth, it’s night and day. It sounds very much like the speech that Margeret Thatcher gave at the College of Europe in the 80s and that speech was hugely contested by the other Member States at the time. They said: ‘This is not our Community.’ And so with the Merkel speech we seem to come full circle to a prior state of affairs of the understanding of the state in Europe.

FELIX RONKES AGERBEEK: Of course that was more than 10 years ago…

JULIO BAQUERO CRUZ: But I don’t think much has changed in the meantime, because the speech of Chancellor Scholz the other day in Prague, he doesn’t mention integration at all. And his speech is also very much a speech of: it’s the Member States, the masters of the thing is the Member States. So the states are the protagonist of this story and the Union is perceived as a vehicle. It doesn’t have a substance of its own. And this is the whole fight of integration.

FELIX RONKES AGERBEEK: But wait I want to push back a little bit on that. Because first of all, in the Prague speech, of course — and I’m not saying that we should attach too much value to these speeches in the end — but first of all, he starts with recalling the historical experience that underpins European integration. And he clearly does that to set the stage for what follows in his speech. And then one of the key things that he says he wants is qualified majority voting, an extension of qualified majority voting, including in tax policy and in the common foreign and security policy…

JULIO BAQUERO CRUZ: It’s true. No, no, don’t get me wrong. The speech of Scholz is very different from the speech of Merkel of…

FELIX RONKES AGERBEEK: Or Thatcher…

JULIO BAQUERO CRUZ: Or Thatcher, of 2010, of the 80s. Yeah yeah, it’s progressive. It proposes some things. Nevertheless, in the rhetoric he is very contained and there are a variety of things… he proposes that the Commission should keep one Commissioner per Member State for example, where… I mean, in the Treaties already this is not the principle. The Commission should already have less Commissioners, so… It’s a little bit of this and a little bit of that in the speech of Mr Scholz.

FELIX RONKES AGERBEEK: I want to stick with Germany for a moment, but change the focus to the German Constitutional Court. In your book you dedicate a lot of attention to the relationship between national courts and the Court of Justice. And you also discuss the Gauweiler case — which was the first case in which the German Constitutional Court made a reference for a preliminary ruling. The second case in which that happened, the Weiss case, occurred after the publication of your book. But you recently wrote an essay called ‘Karlsruhe and its discontents’ that analyses the Weiss judgment in great detail. And to me, reading that essay felt like reading an addendum to your book. Now I’m sure every EU lawyer has heard of the Weiss case and is aware that it challenges the primacy of EU law. But maybe not everyone is familiar with the details of Weiss or Gauweiler. Can you talk us through both cases, maybe starting with the context?

JULIO BAQUERO CRUZ: Both cases are about the programs that the European Central Bank adopted in order to support the euro.

FELIX RONKES AGERBEEK: Because we are talking about a time, well into the sovereign debt crisis, in which there was an economic slump. High unemployment. And interest rates hovering around zero percent, so the ECB was running out of options.

JULIO BAQUERO CRUZ: Yes, when you go to zero you cannot lower it any longer and that means that you have no monetary policy anymore — at least you cannot do it through the normal instrument which is interest rates.

FELIX RONKES AGERBEEK: Right.

JULIO BAQUERO CRUZ: So what did they do, they looked at the statute and they found other instruments they had. One is buying titles in the secondary market. And that’s a way of injecting money into the economy and to keep it afloat. And also ensuring that the monetary policy has an effect on the ground. This is a tool that is there, that central banks use, maybe not in the amounts that they were using it in that period, but all the central banks were doing that. The Federal Reserve was doing that, the Bank of Japan was doing that, the UK central bank was doing that, and the ECB started to do that quite late.

FELIX RONKES AGERBEEK: This is where ‘quantitative easing’ comes in, right? And Draghi’s announcement in 2012 that the ECB would do within its mandate ‘whatever it takes’…

JULIO BAQUERO CRUZ: Whatever it takes that was the first programme, the OMT programme…

FELIX RONKES AGERBEEK: …the Outright Monetary Transactions programme and then, a couple of years later the PSPP, the Public Sector Purchase Programme.

JULIO BAQUERO CRUZ: Yeah. But this kind of monetary policy it was contested from some circles in Germany, arguing that, basically, that it was not real monetary policy, that this actually was economic policy. Economic policy that in their view remained with the Member States and the Union having only a power of coordination. It was also considered that this was also in breach of the no-bail-out clause, that this was a way of rescuing Member States, and various other arguments but these were the main ones.

FELIX RONKES AGERBEEK: And there was already disagreement about these measures within the European Central Bank.

JULIO BAQUERO CRUZ: It’s important to understand that the European Central Bank is a supranational institution, and that decisions are taken by majority. And it’s important to know that the representative from the Bundesbank sitting in the European Central Bank voted against the OMT programme and voted also against the Public Sector Purchase Programme. Because probably these decisions were not in the short-term solipsistic interest of the German economy. And this is interesting because these are people who are thinking about the German economy as a distinct unit. They are not thinking as the Treaties want, having regard to the European situation. They don’t think about Europe or the euro area as having its own economy or its own economic policy. And it was also challenged legally for these reasons.

FELIX RONKES AGERBEEK: How did that become a constitutional law question before the German Constitutional Court?

JULIO BAQUERO CRUZ: Well that’s quite weird. That’s a construction that comes from the Maastricht judgment of 1993. In Germany, to attack a law of the legislature for example, before the Constitutional Court, you need to be directly, individually and actually concerned by it. You need to show that, otherwise you will be inadmissible. However, when you want to attack a measure that is adopted at Union level — not directly, when you want to attack German institutions but not doing something against a measure adopted at Union level, you can do it in a sort of ‘actio popularis’ and you can do it anytime and this will be admissible. Because the Constitutional Court considers that the Union is not democratic or not sufficiently democratic and therefore that shifting policy decisions from the Member State to the Union level diminishes your rights of participation under Article 38 of the German Constitution. This is the theory behind it. And that means that anybody, any person, Mr X, Ms Y, can, you know, bring before the German Constitutional Court any act of Union law by saying: this is ultra vires, this is beyond the competences of the Union; German institutions should have avoided that this act or this decision of the ECB was adopted; and by shifting this policy competence that should be decided by German institutions with the normal German democracy you are actually emptying of content my right of participation under Article 38 of the German Basic Law. 

FELIX RONKES AGERBEEK: Who were the applicants in these cases?

JULIO BAQUERO CRUZ: Individuals. Some of them were politicians, some of them were from, the say, extreme right most of them, or extreme left. Not the mainstream parties.

FELIX RONKES AGERBEEK: Ok. So this is how both cases ended up before the German Constitutional Court. First Gauweiler, which was about the OMT programme. And later Weiss, which was about the PSPP. And in each case the German Constitutional Court made a reference for a preliminary ruling to the Court of Justice and the Court of Justice both times held that the programmes were lawful and within the powers of the ECB. But the German Constitutional court’s assessment of the programmes was, let’s say, counterintuitive.

JULIO BAQUERO CRUZ: Yes. The first programme was much more massive. The OMT that Draghi announced it had no limits, it was selective, it was buying titles in the secondary market of some Member States only. I mean from many points of view it could have been much more problematic than the PSPP, than the second programme, which was capped and it was not selective, it was buying titles from all the Member States. In Gauweiler there was a preliminary reference to the Court of Justice, which gave its judgment, and then it came back to Karlsruhe and in the end the Constitutional Court in Germany declared it constitutional, with some minor disagreements or nuances. So everybody thought: OK this is overall a positive development. When it came to the PSPP, to the second programme, which as I said from the tenets of the jurisprudence of the German Constitutional Court should have looked much less problematic, there was a preliminary reference to Luxembourg that was much less aggressive in tone than the one in Gauweiler, and the Court of Justice I think thought: well, this is the usual thing. It felt, I think, relaxed, and it gave its judgment and then, surprise surprise, a year later the German Constitutional Court declares the PSPP decision of the European Central Bank and the Weiss judgment of the Court of Justice ‘ultra vires’, unconstitutional. Saying that the judgment of the Court [of Justice] is clearly incomprehensible and, I mean, completely wrong basically. Manifestly wrong in law — as a matter of EU law. So that was quite a shock for EU lawyers.

FELIX RONKES AGERBEEK: The rhetoric of that judgment is remarkable — I mean the rhetoric alone. It calls the Court of Justice’s ruling ‘not comprehensible’, ‘objectively arbitrary’ and ‘simply not tenable from a methodological perspective’. 

JULIO BAQUERO CRUZ: Yes. Yes. That, it, this is quite funny, or maybe you can think it’s a bit sad, but the juge-rapporteur of the judgment in the German Constitutional Court said: we had to use those terms because those are the terms that are the yardstick to find an ultra vires judgment. Because you have to know that in Honeywell — a previous judgment of the German Constitutional Court — they had held that, to be ultra vires, first you need to send a reference to the Court of Justice and it’s only if the Court of Justice gets the division of competences manifestly wrong, but really interpreting the Treaty in a clearly incomprehensible manner, leading to a, you know, structural transgression of the order of competences, to a shift — a sort of tectonic shift — in the order of competences, it’s only there that we would intervene. And then the rapporteur said: this is the yardstick so we needed to say these nasty things, which… is a curious way of reasoning in legal terms.

FELIX RONKES AGERBEEK: So what exactly were the legal grounds for saying, in Weiss, that there had been a tectonic shift of competences? You mentioned already that, from the start, there was this discussion about whether… what the ECB did was ‘monetary policy’ or ‘economic policy’. The idea being that monetary policy is something the ECB can do, but economic policy is something that has to be coordinated between Member States. And that becomes the central question in the Weiss case. But in the end the German Constitutional Court doesn’t say that the PSPP was ‘economic policy’. It says something different…

JULIO BAQUERO CRUZ: It’s very strange, because the Court of Justice said, and I think this is perfectly logical, it says: in order to determine whether a measure of the European Central Bank remains within the bounds of monetary policy, you have to look at its objectives, whether it pursues the objectives of monetary policy, and then you have to look at the tools, whether the ECB is using one of the tools which the Statute of the ECB gives to it. So in Weiss, also in Gauweiler, the Court said: well, this is the objective, ensuring the stability of the currency, the transmission of monetary policy, the unicity of the currency, so that monetary policy doesn’t become ineffectual for some areas of the euro area. The tool — buying titles in the secondary market — it is in the Statute, it’s there, it’s a tool of monetary policy. So the argument is fairly simple. And the Court said: the impact, the effects are irrelevant, because economic policy and monetary policy, they can have the same kind of impact on the real economy, that’s why they are doing these policies, to have an impact. Even when you’re using the interest rates — now the ECB is raising the interest rates — it has impacts which are indistinguishable from the impact of a taxation measure or an expenditure measure which are a measure, measures of economic policy. And the German Court, oddly, in the Weiss judgment said: the Court of Justice of the European Union got it wrong, you need to analyse the impact, to see whether the impacts of these policy measures of the ECB start to resemble the impacts of economic policy measures. So this is… you cannot distinguish legally or economically on the basis of the impacts, but this is the yardstick that the German Constitutional Court is using in Weiss. And then it says: how do you distinguish? You will do it on the basis of the principle of proportionality: if a measure of monetary policy suddenly has a disproportionate impact vis-à-vis its objective… hocus-pocus it becomes a measure of economic policy and therefore it’s ultra vires. And that’s the second I think shift that is odd in terms of legal technique because proportionality is a condition for the legality of a measure, we agree on that, but proportionality is not about the division of powers, it is about the intensity of the action when you have the power to do something. Now, monetary policy is an exclusive competence, so even considering that you could have a disproportionate measure of monetary policy, it doesn’t make it economic policy, it simply means that it is disproportionate monetary policy. It would be intra vires, but would be illegal in terms of substance. And in its own case-law, the German Constitutional Court, on the division of powers between the Länder and the Bund, it has said that the principle of proportionality is not relevant as a matter of German law, so…

FELIX RONKES AGERBEEK: Yeah, it’s a really unorthodox move to fuse the question of competence and proportionality in this way…

JULIO BAQUERO CRUZ: It doesn’t even say that the measure is disproportionate. It says that the grounds given for it, in the judgment of the Court, and in the decision of the ECB do not conform to its conception of the policy and of its proportionality and that it cannot examine it. And therefore it considers it ultra vires because of lack of grounds. And that’s, that’s I think very strange in legal terms. Because how can the lack of grounds of a measure render it ultra vires? It’s a formal requirement, it cannot have an impact on the analysis of competence.

FELIX RONKES AGERBEEK: But then how should we understand this judgment? I’m asking also because, practically, the case had very little consequence for…

JULIO BAQUERO CRUZ: No consequences…

FELIX RONKES AGERBEEK: No consequences. There’s another ECB programme, the Pandemic Emergency Purchase Programme for which a challenge is still pending in the German Constitutional Court. And we’ll have to see how that plays out. But the PSPP, the one this judgment was about, stayed in place. So how should we make sense of the judgment?

JULIO BAQUERO CRUZ: It’s difficult to make sense of this in technical legal terms. It’s about something else. It’s a statement. Also if you consider that in the end the ECB adapted a little bit its communication on this kind of measures while raising the purchase of titles even more, and nothing happened really. Nothing happened. Nothing changed. Then my deep impression was that the objective of this very dubious intervention from the German Constitutional Court was not the ECB. In reality it was the Court of Justice, because what remains of this judgment is the holding that a judgment of the Court of Justice is ultra vires because it is manifestly incomprehensible and utterly wrong as a matter of EU law. Because the German Court is saying: you got it wrong as a matter of EU law, so you’re not an authoritative interpreter of your own law. And this I think is a legal utterance of huge and very very dangerous proportions.

FELIX RONKES AGERBEEK: If the target was not the ECB, but the ECJ, as you say, then what is the real impact of this judgment, the real danger?

JULIO BAQUERO CRUZ: It breaks the myth, it’s breaking the taboo, and many other courts may be tempted to follow and some have followed, notably the Polish Constitutional Court… and I don’t want to say that what the German Court did in Weiss is the same as the constitutional court of Poland did in these cases about independence of judges and Article 6 of the European Convention [on] Human Rights. It’s not the same. The Constitutional Tribunal of Poland is much more, how can I say, brutal in its intervention, declaring that Article 19 of the [EU] Treaty is unconstitutional… It’s not the same, it’s… What I am trying to say is that when you break the taboo others may feel empowered and legitimised to do that in ever most egregious ways. This is, I think, it was a lack of sensitivity on the part of the judges of the Second Senate of the Constitutional Court in Germany. The then President Voßkuhle declared to a newspaper, they asked him: ‘Weren’t you thinking about Poland and Hungary and what they would do?’ And he said: ‘The Poles do what the Poles do and we do what we do.’ So… I think that shows a sort of self-involvement and a sort of very limited normative and institutional horizon and not seeing that an intervention of the German Constitutional Court on a matter of European concern, such as the Public Sector Purchase Programme, is not just about Germany. And declaring a judgment of the Court of Justice ‘ultra vires’ and manifestly, or incomprehensible, this will have an impact in the Union as a whole. So I find it a bit strange this intervention. At the same time historically at this point of time it’s very understandable. I mean you could expect it.

FELIX RONKES AGERBEEK: Why is that?

JULIO BAQUERO CRUZ: Because we seem to have come round circle in this whole history of post-war reconstruction where in a way integration would have been the — this the theory of Alan Milward in ‘The European Rescue of the Nation State’ — integration would have been the sort of the, you know, when you do works in your home, you have to repair something, they put the scaffolding. At the end when the house is rebuilt they take away the scaffolding. And in this view, which is out there, integration would be a scaffolding that had been there to reconstruct the Member States, the nation state, for a long time, and now that they are reconstructed the scaffolding would be useless and you just take it away. So this kind of pronouncements, now passing from words to facts, I think what they are saying is: look, the reality of power is in the state and the Union is a fragile contingent construction. And I think that’s wrong, historically blind, because the state is also weak and fragile and also has these destructive tendencies sometimes. And it’s wrong to forget about them. I think it’s wrong to forget about them.

FELIX RONKES AGERBEEK: What’s the way forward from this? Now that the German Constitutional Court has gone from words — words of warning — to deeds, to actually declaring a judgment of the Court of Justice ultra vires.

JULIO BAQUERO CRUZ: I have the hope that, seeing what is happening, that some people in the German Constitutional Court may realise that they have to change that case-law. That they have to enlarge their normative horizon. That they have to be, you know, a positive actor in the process of legal integration and not just a negative influence, a sort of veto here, a veto there, a limit here, a limit there. Because if every constitutional court or supreme court in Europe starts doing that, in the end EU law is going to be unrecognisable, it would become defracted into 27 versions of it. And then the whole point of the Union and its law would be gone. But there has to be in the legal profession, in the constitutional professors, there has to be some shift, some broadening of their views. They have to start to realise that the normative orders in the Union are so interlinked that it’s not possible anymore to think about them with this state-centred perspective that the German Court is using. If they keep on thinking about Union law and the Union from that perspective then it becomes an impossibility.

FELIX RONKES AGERBEEK: In your book you write that we could choose to ‘rediscover the law of integration’ and learn to see it again ‘as a precious asset that we have received in trust’. How do we go about that? How do we reclaim the law of integration?

JULIO BAQUERO CRUZ: Well I think that has something to do with the way people in the legal profession work and think about their work. And about their own role as lawyers, as jurists. Very often — I do it as well — we tend to work technically, in the box, in the technical legal work. The argument, the rule, the interpretation. And we think about the law in logical terms, but we don’t think about it chronologically, in the way the law is built and develops. And we don’t think about it culturally, in the way that law is an institutional feature of our societies and governs human relationships, and structures. We don’t see that. We tend to work within the system. And sometimes I think to be a good lawyer you have to have this double vision. You have to be the technician and sometimes you have to, you know, take a couple of steps back to look at what you’re doing, what it means. For Union law this means, I think, to try to understand the meaning of this creation. What does it mean? Why is it there? What is its function? Why do we have a European Union instead of… nothing? Why did it come into existence? What does it mean today? Why is it changing? In what direction is it changing? What am I doing in all that in my limited role? And something very important which is when we work in this field I think you have to work as a European. That’s something that Pierre Pescatore told me and I agree with him. That, I mean, your national identity, when you work on these issues, you have to leave it at the door and you have to think in European terms. Otherwise you will never be able to become a real European lawyer. You will be doing something else, but not European law. And today in this period where I think we’re a bit lost — EU lawyers are a bit lost — it’s refreshing to look at the beginnings. And this can give meaning to the whole enterprise again. A refreshed meaning. Not the same, but with similar ideas. Some people think and say: oh, the old forms of integration are dead and the new ones are not yet there. And I think that’s wrong thinking. That’s this wishful thinking that you can invent something from scratch. And this is not possible. You always have to work with the things that you have received.

FELIX RONKES AGERBEEK: I think that’s a great place to end. So the final question. Name three books that have influenced you that you would recommend to the audience.

JULIO BAQUERO CRUZ: Yes, yes. I have chosen three books. One is The Enigma of Arrival by VS Naipaul. And this is a great novel about himself. So it’s not really fiction, but it’s a novel. And it’s about his retreat in a cottage in the English countryside where he goes to write. And he starts to remember the moment he left Trinidad, his island, via New York, to go with a scholarship to study at Oxford or Cambridge, and his feelings then of displacement. Feelings of being completely out of place in Great Britain, being a foreigner, being detached, observing things, observing nature, observing the Brits in the countryside. It’s a very rich possession to be in retreat, observing and analysing processes, analysing things, how they go, how things change, constantly. And with some detachment. At the same time with a lot of empathy and sensitivity for things. It’s a great book, The Enigma of Arrival, by VS Naipaul. 

The second book is this book by Sebald, The Rings of Saturn, I have it in Spanish here, Los Anillos de Saturno. It’s Sebald himself again, talking about himself, and he goes travelling by foot in the English countryside. And during his travels he sees things, reads things, talks to people… and he starts reflecting about the transformation of the UK and Europe through the 20th, even 19th century industrialism, colonialism, the war, and he starts seeing everywhere the traces of past periods and the ruins they have left, and the wounds as well. I think you learn more about European law and integration if you read this than if you read, I don’t know, Craig and De Búrca, this is a joke, but you learn more about the tragic, sad, dense, meaningful history of Europe and what we have inherited if you read this than if your read many technical books about EU law. This is a great masterpiece.

And the third book I’ve chosen is by Olga Tokarczuk, the Polish but really European and I think cosmopolitan writer, called Flights. And this is also a very very curious book, which mixes points of view, genres, sometimes it’s a short story, sometimes it looks like an essay, it changes times, places, characters. There is no link between the parts. You don’t see many books [like it], because the literary forms are predetermined by old usage, but today I don’t think they correspond all the time with our experience, and this book, the way it’s written, the stories it tells, it corresponds much more with our consciousness and the way we are. It gives you I think a very very vivid image of what it’s like to live in the present.

FELIX RONKES AGERBEEK: You have also written novels yourself.

JULIO BAQUERO CRUZ: Yes, yes, some. I like to write, I’ve always written. 

FELIX RONKES AGERBEEK: Have these three authors, Naipaul, Sebald, Tokarczuk, have they influenced you as a writer? 

JULIO BAQUERO CRUZ: Naipaul, the way he writes, the things he writes, I feel a huge affinity with it and it’s the way I tried to write, even before I read Naipaul. Tokarczuk, Sebald I admire a lot, it’s very enriching for me, but it’s not the way I would write. But I think it’s wonderful. 

FELIX RONKES AGERBEEK: Julio, thank you very much. Your book is ‘What’s left of the law of integration?’. It’s profound, it’s beautifully written and it covers much more than we were able to talk about in this conversation. I can recommend it to everyone. 

JULIO BAQUERO CRUZ: Thanks to you Felix.

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