Emotion and the Vertical Separation of Powers: Ultra-Vires Review by National (Constitutional) Courts, and EU and International Law

Abstract Whether national (constitutional) courts are entitled to exercise ultra-vires review of the decisions of the European Court of Justice is not only a controversial question, but also one of the most emotive issues in European and constitutional law. This article questions firstly the general and often emotional criticism of national ultra-vires review in general and answers the fundamental question whether national ultra-vires review represents a threat or rather an asset to the rule of law at a national, European and international level. It argues that a national ultra-vires review is an important instrument to supervise the international judiciary provided that it is not abusive of the law. Secondly, the article analyses the PSPP Judgment and the Polish ultra-vires decision of October 21, 2021. It concludes that only the ultra-vires review of the German Constitutional Court meets the requirements for a rule of law based control. The final argument is that a rule of law based ultra-vires review should be seen as a crucial piece of the puzzle in the current process of delimiting vertical authority.