Gauweiler and the legality of Outright Monetary Transactions

The Gauweiler case has already made history, since it was the first reference from the Bundesverfassungsgericht to the Court of Justice of the European Union (CJEU). Whether it makes history in other respects remains to be seen. The Bundesverfassungsgericht's reference was framed by its jurisprudence on ultra vires and identity locks, and the Bundesverfassungsgericht left the CJEU in no doubt that it felt that the European Central Banks (ECB)'s intervention via Outright Monetary Transactions was unlawful, and could only be saved if interpreted in the manner set out by the referring court. The CJEU nonetheless upheld the legality of the Outright Monetary Transactions (OMT) schema, and its reasoning, together with that of the Bundesverfassungsgericht, is analysed in this article. It will be argued that the CJEU's decision was correct and legitimate in the light of the relevant Treaty provisions. The ball is now firmly back with the Bundesverfassungsgericht, and it remains to be seen whether it accepts the CJEU's ruling or makes history by refusing to follow it.