Applying the rule of law is key to EU operations
When the UK unilaterally decided to extend the “grace periods” for imposing controls on goods in the Irish Sea, it did so in defiance of its treaty obligations under the agreement’s protocol. withdrawal. And, unsurprisingly, the European Commission immediately took legal action to demand compliance before the Court of Justice of the European Union (CJEU).
In its role as ‘guardian of the treaties’, the committee has a duty to ensure respect for the rule of law across the Union – and, as EU officials in the EU have argued. At the time, the option of not suing the UK just wasn’t on. The prosecution was not an act of malice or the diplomatic escalation of a confrontation, as some in London have sought to describe it. Not to prosecute would have been a derogation from duty which would almost certainly have seen the commission itself dragged into court.
And that’s what started this week in the European Parliament where MEPs overwhelmingly decided to sue the committee for its failure to trigger financial sanctions against Poland and Hungary for undermining democratic standards and the rule of law.
Although the commission has already taken legal action against the two countries – indeed, as recently as this week, the latest case against Hungary was launched following the February shutdown of Klubradio, an independent radio station. – the right to apply financial sanctions in the event of violation of the rule of law, a controversial new provision in the latest budget regulations, has not yet been tested.
Hungary and Poland
In February, the committee sued Hungary for failing to comply with a CJEU ruling that legislation restricting foreign funding of NGOs was contrary to EU rules. And last month, an Advocate General of the Court said that a reform of the Polish legal system had removed “the minimum guarantees necessary to ensure the necessary separation of powers between the executive and the judiciary”.
Commission sued Hungary for failure to comply with CJEU ruling that legislation on restricting foreign NGO funding was contrary to EU rules
Last year Hungary fought tooth and nail against the budget clawback provisions and only lifted its veto on the € 1.8 trillion budget and the coronavirus stimulus package when, according to some MEPs , she received private assurances that the clause would not be used. The commission said it cannot be triggered until detailed guidelines are released. Critics say the EU executive is pulling its punches for political reasons.
The MEPs’ resolution adopted on Thursday highlights the committee’s “inaction” under Article 265 of the EU treaties.
Determined to defend the legal order of the Union and the ultimate dominance of the CJEU in European law, the committee also launched a legal action against the German constitutional court on Wednesday after its judges questioned in 2020 a program massive purchase of bonds from the European Central Bank which would be “ultra vires”, beyond its powers. The CJEU had already approved it.
While the bond buying, an important part of the EU’s stimulus package, came about thanks to a conciliatory gesture by the ECB to the court, the committee said on Wednesday it was still taking action because the German court had set a “dangerous precedent” that could undermine the EU and pave the way for other courts in member states to challenge the hegemony of the CJEU and the rule of EU law.
Not mentioned, but clearly in the committee’s sights, are the bad boys Poland, Hungary and the former member, but the UK defying the treaties.
Litigation against Germany, Poland, Hungary and the UK is extremely important to prevent fragmentation of the EU legal order
The fiercely independent Constitutional Court in Karlsruhe has seen itself as the ultimate arbiter of the legality of EU law in Germany, especially in areas related to fiscal and monetary policy. An embarrassed government in Berlin has diplomatically tried to straddle both sides of the argument, carefully avoiding any explicit criticism from its own court. Or in defiance of his decisions.
The litigation against Germany, Poland, Hungary and the UK is extremely important to prevent fragmentation of the EU legal order. The rule of EU law in the Member States is essential to ensure the certainty and consistency of the rules of the legal game in a single market, an erosion of the sovereignty of national courts necessary to establish collective sovereignty and the rule of law which are the essence of the Union.
No less important is the legal defense of the provisions of the protocol and its proper application, notwithstanding the fate of British sausages.