Constitutional Pluralism as Mutually Assured Discretion

Abstract

This article analyses the standard of review applied by the Court of Justice in the Gauweiler case concerning the European Central Bank's (ECB) Outright Monetary Transaction (OMT) policy. It argues that the Court's focus on rationality and proportionality checks bears great potential for constitutional pluralism in the European Union. Both standards are relatively vague. This allows each actor to use these standards to keep other actors in check. Their particular virtue lies in the fact that they induce self-restraint in other actors because their vagueness leaves them in the dark about possible reactions and because all actors have an interest in keeping the Union intact, or at least in avoiding responsibility for causing serious cracks. Questions of hierarchy and the ultimate say can therefore remain undecided. The Federal Constitutional Court pursued exactly this strategy in its Solange judgments and the Honeywell decision. If it continues following this line of reasoning, the Gauweiler case would lead to a more robust form of constitutional pluralism in the EU. Under this framework, the ECB would have the possibility to decide, in the ambit of its discretionary powers, whether to participate in a sovereign debt restructuring.