There are 27 member states in the EU. Two have now declared they are not bound by EU law. Based on the law as set out in the treaty each member state signs when it joins the EU, that means both countries are in breach of international law.
The first country in breach of international law was Germany. I wrote about this last year. The German court said it wasn’t bound by EU law because the EU had no power to act on the legality of the ECB’s bond-buying programme during the pandemic. The Germans said ‘you can’t answer this question, so we will’.
Crucially, the EU disagreed and the European court gave a judgment on the legality of the bonds. At this point the German court overruled the EU. The Germans said the ECJ was ‘ultra vires’ – outside its powers.
As I wrote at the time, that was an absolutely fundamental break with the EU. Wherever anyone stands on EU membership, we all know you cannot be a member of a club and just ignore its rules. At the time, I also warned that any other member of the EU27 might eventually do the same as Germany.
Unsurprisingly, Poland has now copied Germany and has also broken from the EU. In an escalation against the EU, a Polish court has declared that ‘Polish judges don’t become EU judges by the virtue of applying EU law’. What they mean is that the Polish constitution will determine EU law and not EU institutions.
It took until June this year (over 13 months) for the EU commission headed by Ursula von der Leyen to even begin compiling a case against Germany for their earlier breach of the law.