Bulletin n. 1-2/2014
November 2014
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Mattias Kumm
    Rebel Without a Good Cause: Karlsruhe’s Misguided Attempt to Draw the CJEU into a Game of “Chicken” and What the CJEU Might do About It
    in German Law Journal , vol. 15, issue 2 ,  2014 ,  203-215
    When the Federal Constitutional Court (hereinafter FCC) decided to refer the question of whether the European Central Bank’s (ECB) decision on the purchase of Outright Monetary Transactions (OMTs) is compatible with EU primary law, it effectively forced the Court of Justice of the European Union (CJEU) into a game of “chicken.” “Chicken” is a game in which two drivers drive towards each other on a collision course. If neither of them swerves, both may die in the crash. But if one driver swerves and the other does not, the one who swerved is a coward (a “chicken”). The best outcome for each player is to go straight while the other swerves (a crash is avoided and the other is the “chicken”). A crash is presumed to be the worst outcome for both players. This yields a situation where each player, in attempting to secure his best outcome, risks the worst. One strategy for playing this game is to disable the steering wheel in a way clearly visible to the other party. The only way to avoid the crash is then for the other party to swerve, given that the first party has effectively pre-committed itself not to swerve. The FCC has decided to disable the steering wheel and has limited its own options by largely pre-committing itself to declare the ECB’s policy unconstitutional, unless the CJEU follows the interpretative approach laid out by Karlsruhe. To elucidate the exact structure of this game and to understand the options available to the two major actors, part B of this essay will (I) briefly describe the specific legal context of the reference as the FCC sets it up, then (II) assess possible ways the CJEU might and perhaps should respond, and (III) finally discuss what options the FCC will...
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