For the European Union to work, its law must be supreme. All member states have courts, but those courts submit to the EU’s own court, the European Court of Justice (the ECJ). The UK knew and accepted this. By the time the Lisbon Treaty was signed, everybody knew this. That is why Poland and Germany are both legally wrong to have denied that EU law is supreme and declared that their national courts have the final say. Legally speaking, both have done a unilateral declaration of independence: taken back control. An important article examining the crisis has laid this bare. While it’s quite technical (the EU’s power lies in these boring-but-powerful rules) it’s worth understanding the depth of what is now an EU rule of law crisis.
Germany says its judges can overrule the ECJ – and thus pick and choose which judgements it is bound by (i.e. the opposite of the rule of law) and Poland says the same. Germany may even go further, but it frankly hasn’t clarified. Hence the crisis: courts mean nothing if obeying them is voluntary.
This is now being examined by legal scholars leading to an extremely interesting and learned article here. The author, Morten Rasmussen, explains how EU law and the EU courts are intertwined with the project of EU expansion. The courts are tasked with further integrating member states in to the EU. His analysis says that the EU’s court (the Court of Justice) was given a fundamentally political role. It was not there to uphold laws as much as push through the EU’s agenda.
Yet some EU legal scholars are unhappy when this distinctly ideological origin is pointed out, as has been in recent years by legal historians. Their work has been met with mixed reception.
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