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Doubtful it Stood…: Competence and Power in European Monetary and Constitutional Law in the Aftermath of the CJEU's OMT Judgment
- Heiko Sauer
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- Journal:
- German Law Journal / Volume 16 / Issue 4 / 01 September 2015
- Published online by Cambridge University Press:
- 06 March 2019, pp. 971-1002
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Quite unsurprisingly, the CJEU has held that the ECB's OMT program does not violate EU law. In accordance with this holding, I argue in the first part of this note that the OMT program does not transgress the ECB's mandate under the Treaty, which is often interpreted too narrowly, in particular by German legal scholars. Furthermore, I argue that a violation of the prohibition of monetary financing of the member States as enshrined in article 123, para 1 TFEU cannot be inferred from the ECB's announcement of a program, which has never been implemented. In any case, there is clearly no manifest and grave transgression of EU competences which, according to the German Federal Constitutional Court's (FCC) Honeywell doctrine, is required for an ultra vires finding. The second part of this note shows that the FCC's doctrine regarding transgressions of competences by EU organs (ultra vires review) is not only unconvincing as a matter of principle but also and worse (as on premises we can always reasonably disagree) not consistently applied to the OMT program. The note also objects to the Court's somewhat trendy blending of ultra vires and constitutional identity review of EU law through which it increasingly conceals its approach of applying the so-called constitutional constraints of European integration to the EU organs' conduct. The forthcoming FCC judgment is therefore less important as regards the quite foreseeable finding on the lawfulness of the OMT program but – hopefully – of vital importance as it might embody a more coherent relaunch of the FCC's standards of judicial review with regard to EU law.
The judgment of the Court of Justice of the European Union (CJEU) on the European Central Bank's (ECB) 2012 announcement of future Outright Monetary Transactions (OMT) comes as no surprise. It had not been expected that the CJEU would interpret the European Economic and Monetary Union's (EMU) Treaty provisions the way the FCC had “suggested.” Neither had it seemed conceivable that the CJEU would reject the FCC's request for a preliminary ruling holding that a legally non-binding assessment of the EU action's lawfulness could not be requested under Article 267 TFEU. The judgment had nevertheless been awaited for with tension for two reasons: First, in the vigorous and in part very critical debate about the ECB's competences under the TFEU and its alleged ultra vires action a judgment by the CJEU was necessary to settle the fundamental European law issues at stake. This is all the more important with regard to the ECB's current Expanded Asset Purchase Program (EAPP) as well as its interconnection with the European Stability Mechanism's (ESM) financial assistance programs. The CJEU's holdings on the ECB's competences within the EMU framework are discussed in the first part of this note regarding the distinction between monetary and economic policy (infra section A.I.) and the interpretation of Article 123, paragraph 1 TFEU which prohibits monetary financing of the member States by the ECB (infra section A.II.). Second, it was clear that the judgment would shape the new stage in the changing and sometimes explosive on-off relationship between the CJEU and the FCC, the stage entered into by Karlsruhe's first ever request for a preliminary ruling. The FCC had fortified its ultra vires doctrine and clearly indicated its readiness not to follow the CJEU but to insist on the notorious “last word” of the German Constitution instead. Thus, the second part of this note discusses the constitutional legal premises of the FCC's approach and the procedural and substantial manner in which the FCC tries to scrutinize the ECB's OMT program (infra sections B.I. and B.II.). In this context, possible scenarios for the upcoming judgment (infra section C.I.) and consequences for European multi-level constitutionalism (infra section C.II.) will be discussed.
Gäfgen v. Germany
- Heiko Sauer, Mirja Trilsch
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- Journal:
- American Journal of International Law / Volume 105 / Issue 2 / April 2011
- Published online by Cambridge University Press:
- 27 February 2017, pp. 313-319
- Print publication:
- April 2011
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Magnetic resonance imaging in patients after a modified Fontan operation
- Heiko Stern, Richard Bauer, Gerrit Schrötera, Ursula Sauer, Peter Emmrich, Konrad Bühlmeyer
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- Cardiology in the Young / Volume 2 / Issue 2 / April 1992
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- 19 August 2008, pp. 158-167
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Magnetic resonance imaging was performed in 26 patients who underwent a modified Fontan procedure. Their age ranged from 1.8 to 31 years with a mean of 12.2 years. A valveless anastomosis was performed between the right atrium and the rudimentary right ventricle in 12 patients and between the right atrium and the pulmonary arteries in 10 patients. A cavopulmonary connection was established in the remaining four patients. Spin echo and gradient echo scans of the heart were performed in orthogonal and angulated projections. The cross-sectional area of the atrioventricular, atriopulmonary or cavopulmonary anastomoses was measured using diameters in two orthogonal imaging planes. Recordings were examined for the presence of right atrial thrombosis, the site of drainage of the coronary sinus, compression of the pulmonary veins, as well as for the presence and extent of pericardial effusions. Cine recordings were used for the assessment of the pattern of flow within the right atrium. The cross-sectional area of the anastomoses could be determined in 24 of 26 patients. This was not statistically different between patients with different surgical procedures. Patients with a cavopulmonary connection, however, tended to have a smaller anastomosis (mean 1.4 cm2/m2 BSA, S.D. 0.62) than patients with atrioventricular (mean 3.0 cm2/m2, S.D. 2.1) or atriopulmonary (2.4 cm2/m2, S.D. 1.1) connections. When compared to normal values for the size of the tricuspid valve, the size of the anastomosis was within the normal range in only four patients, it was larger in one and smaller in 19 patients. There were signs of right atrial thromboses in the scans in eight of 26 patients, as observed by two independent investigators. The site of drainage of the coronary sinus was imaged in 20 of 26 patients and was in accordance with the description of surgical procedure in eight. Compression of the right pulmonary veins by an enlarged right atrium was present in seven patients. This was severe in two children. Presence and extent of pericardial effusions could be adequately assessed in 11 of26 patients. Systolic regurgitation from the rudimentary right ventricle into the right atrium was shown in eight of 12 patients with an atrioventricular valveless anastomosis. Cine recordings revealed slow forward flow from the right atrium into the pulmonary arteries in seven of 22 patients, and there was a markedly altered pattern of intraatrial flow in two patients with anomalous systemic venous connections. Magnetic resonance imaging allows adequate examination of right atrial anatomy, determination of the size of the anastomosis with the pulmonary arteries, and semiquantitative assessment of pulmonary blood flow in the majority of patients after a modified Fontan procedure.