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.”

The division of external competences between the European Union and the Member States is a long-standing object of contention for constitutional and practical reasons. The competence to negotiate and conclude international agreements in a given area has as many highly political implications as concrete policy-making ones. This tension is well illustrated by the field of the commercial aspects of intellectual property. Community, and later Union, competence over this area was established only gradually. After multiple Treaty revisions and legal disputes over competence, the Treaty of Lisbon now lists the field as one of the main elements of the Union's Common Commercial Policy (CCP). The CCP itself is one of the founding policies, dating back to the European Economic Community. It structures the Union's trade relations with third countries, encompassing bilateral and multilateral trade and tariff agreements, as well as unilateral trade defense measures such as anti-dumping and anti-subsidy instruments. Today, the Treaty of Lisbon expressly provides for exclusive Union competence over the CCP, codifying the case law of the Court of Justice.

According to the European Convention on Nationality (1997), nationality-or the term “citizenship” used as synonymous with nationality-means a legal bond between a person and a state. As such, nationality is linked to nation building. Nationality can also be defined as equal membership in a political community, and as a status to which rights and duties, participatory practices and a sense of national identity are attached. In other words, nationality constitutes an important element of a person's identity.

European Union citizenship is linked to nationality in an EU Member State. Union citizenship grants rights to the Member State nationals and may be defined as membership in a larger political community, the EU. Union citizenship is meant to foster a feeling of European identity. The third report of the Commission on Citizenship of the Union described citizenship as “both a source of legitimation of the process of European integration, by reinforcing the participation of citizens, and a fundamental factor in the creation among citizens of a sense of belonging to the European Union and of having a genuine European identity.”

My paper has two parts. In the first part I will outline an evolutionary model for analyzing the relation of democracy, cosmopolitanism and conflict. In the second part I will apply it to the case of European constitutionalization, and its failure.

In the environment of ongoing endeavors to “rescue” the Euro, the Second Senate of the Federal Constitutional Court (FCC) is meanwhile dealing with several constitutional complaints challenging matters that could be described as “the future of the German Bundesbank” and “the present and the past of the German Federal Government and the German Bundestag.” Or, to be more specific, the complainants currently challenge the prospective participation of the German Bundesbank in possible future implementations of the so called “OMT Framework” of 6 September 2012. They also argue that the German Federal Government and the German Bundestag “failed to act” regarding this OMT framework.

This essay aims to expand the definitional contours of the “lost generation” discussed in this special section of the German Law Journal. A reflection on the existential loss experienced by many young Europeans must also acknowledge, for the record and for reasons of relative salience, those who have literally drowned in the waters of southern Europe in their quest for a better future. Their youth has been lost in a true—not just metaphorical or metaphysical—sense. The per-day death toll reached its peak on 3 October 2013, when over three hundred bodies were retrieved off the coast of Lampedusa by Maltese and Italian rescue forces. The just-concluded summer brought another tragic surge in Mediterranean migration, including more deadly shipwrecks.

The boundaries of European integration and especially the relationship between European and German Constitutional Law have occupied the German Constitutional Court—the Bundesverfassungsgericht in Karlsruhe—time and again since its first Solange I Judgment of 1974. Practically all of these decisions—Solange II, Maastricht, Lisbon, and Honeywell to name just a few—have had a major impact not only on the national, but also on the European discourse regarding the future of the European Union. 14 January 2014 now marks the date of another “historic” decision in this sense, which, unsurprisingly, has already led to major discussions not only in Germany, but all over Europe. For the first time ever the Constitutional Court has initiated a referral to the European Court of Justice asking questions about the conformity of some of the highly disputed measures of the ECB taken to fight the crisis with Primary European Law. The reluctance of the Constitutional Court to comply with its duties under the TFEU and to accept the role of the ECJ as the final interpreter of European Law had been criticized for many years, not only after the Lisbon Decision of 2009. However, the Constitutional Court reacted to these critics in its Honeywell Decision of 2010 and, so it seemed, started to redefine its understanding of its relationship with the European judicial system. This redefining process has now found its temporary endpoint with this first referral, which therefore truly stands for a new era in the relationship between the Constitutional Court and the ECJ within the “European Network of Constitutional Courts.”

How are we to understand the state of citizenship in Europe twenty years after the implementation of the Maastricht Treaty? When answering this question, I focus particularly on social citizenship. Social citizenship may be understood as a form of political relationship among citizens extending to each collective protection against the financial risks associated with the life cycle, including dependency when young, ill heath, accidents, and the vulnerabilities of old age. Collective protection against these financial risks takes the form of social rights within the welfare state, including rights to income protection, access to health care, and the provision of education. Within the most economically developed European states, securing these rights has since 1945 been seen as central to the democratic legitimacy of these states, as well as an aspirational standard for democratizing societies seeking to achieve “the concrete substance civilised life” and the associated “general reduction of risk and insecurity”1 at all levels that the welfare state provides.

For the last fifteen years I have taught final year law students at a Spanish state university on a regular basis. While it is extremely difficult to generalize about matters such as the following, I believe that the typical profile of the different groups of students I have taught over the years has been relatively homogenous in terms of quality and performance. Along with a minority of highly motivated and able students, at the beginning of every academic year the classes are mostly made up of silent students who are a priori reluctant to accept individual responsibilities in the learning process. Having presented this seemingly harsh appraisal with no preamble, one of the aims of this essay is to set out a series of arguments that enable us to go beyond the glib self-righteousness of blaming the students for all their woes. In my opinion, it is the Spanish higher education system that is the mainly to blame for many of the factors currently holding law students back. The following factors contribute to this outcome.

One of the reasons for introducing a “Union” citizenship in the 1993 Maastricht Treaty was to provide a direct channel between the citizens of the Member States and the EU. In contrast to many other international organizations, the role of the individual has been central to the European project since its inception. In its famous 1962 judgment given in Van Gend en Loos,1 the Court of Justice of the European Union (CJEU) underscored the importance of the “vigilance of individuals concerned” seeking to protect their European rights in the new legal order through judicial control.2 The right to directly vote on the representatives of the European Parliament had already been introduced in the 1970s. The citizens of the Member States were thus equipped with two classic forms of political participation even prior to the introduction of Union citizenship: law making and the legal adjudication of individual cases. Nonetheless, whether these channels are sufficient to guarantee the citizens effective democratic means to influence legislation and exercise control of EU institutions in the rather complex multilevel legal system of the EU has been continuously debated.

In Karlsruhe's recent request for a preliminary ruling, an unconventional monetary policy measure of the European Central Bank (ECB) finds an unconventional judicial response. Based on its mandate to enforce the fundamental right to vote, the Federal Constitutional Court (FCC) leaves no doubt about its view that the ECB's Outright Monetary Transactions Programme (OMT Programme) violates the law of the European Union and hence the German Basic Law, unless one reads them in a rather restrictive way. But as unconventional monetary policy steps up the need for the ECB to justify the legality of its measures, so does the FCC's unconventional expansion of the scope of judicial review raise questions which the recent decision in its—generally laudable—brevity leaves underexplored. In particular, the decision does not dwell much on the issue whether it is appropriate for a court to review issues of monetary policy, and which standard of review should apply. Only Judge Gerhardt calls the majority's standard of review into question when he doubts whether the requirement for transgressions of the European Union's competences to be “manifest” is a workable criterion for defining the scope of the FCC's ultra vires control.

The Eurozone banking and sovereign debt crisis has brought the fragility of the European monetary union into sharp focus and exposed the lack of effective instruments at the European level to maintain financial stability. As a response to the crisis, the Member States and the institutions of the Union adopted in short succession several financial assistance measures that have given rise to much political and legal controversy. The European Central Bank (ECB) played an active role in the institutions' efforts to contain the crisis and prevent the disintegration of the Eurozone by deploying a number of so-called non-standard or unconventional monetary policy measures, namely its Securities Markets Programme, Long-Term Refinancing Operations, and in September 2012 the Outright Monetary Transactions Programme (OMT Programme). The OMT Decision envisages unlimited purchases by the ECB of specific types of sovereign bonds issued by Member States participating in an EFSF/ESM macroeconomic adjustment or precautionary program in the secondary market. Without the program having been activated, i.e. without the ECB actually implementing the decision and without any purchases of government bonds, yields on bonds of the affected Eurozone countries decreased markedly after the announcement of the OMT Decision. The OMT Programme has accordingly been credited with having been instrumental in restoring financial stability and preventing a breakup of the Euro area and with being one of the most effective announcements any central bank has ever made.

If you want to go in pilgrimage to the place where your constitution was born, you should go to the mountains were the resistance fighters were killed, to the prisons where they were jailed, to the fields where they were hanged. Wherever an Italian died trying to win back the freedom and dignity of our nation, there you should go, young Italians, because it was there that your constitution was born.

– Piero Calamandrei1

European citizenship celebrated its twentieth anniversary during the most difficult and uncertain moment of the Union's crisis. The real economy has now been fully saturated by the financial crisis far beyond the borders of the Euro-Mediterranean area, with devastating social effects in those countries most affected. The prolonged vertical drop of the gross domestic product in Greece—the epicenter of the crisis—has been intertwined with a dramatic and unprecedented growth of levels of unemployment and social suffering in a vortex destructive to the point of validating the perception, now widespread not only within the bewildered public opinion of that unfortunate country, that the “rescue” of the Union has been based on a cure that is worse than the disease. The recent general elections in Italy, a country key for the stability and indeed the survival of the Euro-zone, have produced a situation of fragmentation and political instability that is both unprecedented and disquieting. Among the few elements of certainty in Italy can be found a widespread Euro-skepticism, if not an openly anti-European mood, that is also unprecedented in the history of the country's public opinion, which historically is among the most favorable towards a strengthening of the integration process. With the worsening of the economic and social crisis, the very tenacious confidence in Europe as a positive “external constraint” which has supported Italy's efforts towards reforms, commencing with its admission into the Euro-zone in the latter 1990s until the most recent experience of the technocratic government headed by Mario Monti, seems to have declined. Everywhere in Europe, a sense of frustration and distrust in recent years has grown against the Union and its frantically sought capacity to respond to the crisis without finding truly effective outcomes.

On 6 September 2012, the European Central Bank (ECB) published a press release on “Technical features of Outright Monetary Transactions.” In this press release, the ECB announced that it would purchase bonds of Member States participating in the European Financial Stability Facility (EFSF)/European Stability Mechanism (ESM) program on the secondary sovereign bond markets under certain conditions. Furthermore, it gave notice that there were no ex ante quantitative limits on the size of these outright monetary transactions (OMT). This OMT announcement of the ECB was challenged before the German Constitutional Court. In a 6:2 decision, the Court raised doubts with regards to the compatibility of the actions announced in the OMT press release with the rules governing the mandate of the ECB in the Treaty for the Functioning of the European Union (TFEU), and referred the case to the European Court of Justice (ECJ) for a preliminary ruling.

The German Federal Constitutional Court (FCC) ruling of 14 January 2014 deserves a thorough evaluation on several accounts: It is the first ever reference by the FCC to the Court of Justice of the European Union (CJEU), it represents a continuation of FCC case law aimed at restricting the impact of European Union law as interpreted by the Court of Justices of the European Union (CJEU) on German law as well as questioning Germany's participation in an ever closer European Union, and it has the potential to dictate the future course of the EU's Economic and Monetary Union (EMU).