Mehreen Khan, EU correspondent and Sam Fleming in Brussels 7 hours ago
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How should Brussels respond to Germany’s constitutional court issuing a “declaration of war” on the EU’s legal order? Less than a week after the explosive Karlsruhe ruling, the options are coming into view.

Out of all of them, the European Commission’s “nuclear” option is an infringement procedure against Germany, where Berlin’s government would be taken to court (yes, the European Court of Justice). Ursula von der Leyen, commission president, on Sunday said Brussels "will look into possible next steps, which may include the option of infringement proceedings" in response to pressure for the commission to defend the sanctity of the EU’s legal order against upstart national judges.

Franz Mayer, an influential German jurist, makes the powerful case for the nuclear option in Verfassungsblog. He argues that Karlsruhe’s challenge to the ECJ’s supremacy is a blatant breach of EU law. If it continues, Brussels has little option but to embark on a “calm and civilised” infringement process as laid out under EU law, he says.

There is legal precedent for a member state to be reprimanded over the actions of its courts. In 2018, France was the subject of an infringement over the failings of its Conseil d’État. But the Karlsruhe moment is of a different order of magnitude altogether - both for Germany and the EU. The decision on an infringement will ultimately boil down to politics and not the law.

First, the case for those in favour. By keeping the infringement option alive, Ms Von der Leyen wants to fend off criticism that Brussels is quick to launch legal action against recalcitrant governments in Poland and Hungary, but shies away from the same against its “core” member states. As a German, Ms Von der Leyen is more exposed to that charge than most.

For Mr Mayer, if the commission does not defend the EU’s rule of law, the system risks descending to a “judicial rule of thumb” where the interpretation of the strongest national judges wins. “This will be based on the parameters of size, power, political influence and economic weight of the respective member state,” he warns. For this reason, expect Ms Von der Leyen to keep repeating Brussels’ willingness to take action - including at a hearing with MEPs later this week.

In general, supporters of legal action want the commission to use the full force of its legal armoury to bring Germany’s unruly red-robed judges to heel and set an example for others. They think the threat to the ECJ’s hegemony and the independence of the ECB is so acute that the commission cannot merely stand by and watch. Plenty in Brussels sympathise.

But is legal action the best tool for that job? In practice, it will mean the commission suing the German government for the actions of its independent court in a case where Berlin is not the offender. During the Karlsruhe hearing the government defended the ECB’s bond-buying against the litigants, and last week Olaf Scholz was trying to reassure his fellow finance ministers that a way would be found to keep the Bundesbank involved in bond-buying.

A case would create an invidious situation where Angela Merkel's government is thrown on the defensive and pose fresh legal difficulties about the separation of powers - another EU fundamental right - in Germany. Berlin would not be in a position to issue instructions to Karlsruhe following the infringement given the court’s independence. The result, said one EU expert, would be an "absurd situation" legally.

Commission infringements are also notoriously laborious and can take years to resolve. At their most severe, they result in financial sanctions against said governments. Although they serve a useful purpose in standard violations of EU law, the Karlsruhe judgment poses such profound constitutional questions for the EU, that they won’t be answered by suing Germany. At its essence, the issue is about “who governs the governors?” writes Katharina Pistor.

Still, supporters would argue that even a symbolic legal process is better than nothing. The absurdities of the situation, they argue, should precipitate a serious debate about the relationship between national and supranational courts under EU law. Ultimately supporters want that question resolved not with another legal fudge but a fundamental change to the EU’s treaties to decide the matter once and for all.