Is the European Court of Justice about to unravel?

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. Rasmussen explains why in one chilling sentence:

“'There was also at first resistance both from the CJEU [European Court of Justice] and from legal scholars, who were less keen on any revelations of how ideology… had mixed with legal argument’

That ‘lack of keenness’ to any ‘revelation’ is a particularly sinister idea. Because not only was a court – an institution that should be independent – co-opted to do politics, but legal scholars were resistant when this truth was revealed. We have seen this pushback this week in criticism of three outstanding EU scholars who wrote this explanation of the Polish/German problem. It’s unpleasant and unhelpful to scholarship – but let’s be honest, I didn’t stop publishing and neither did those lawyers.

So if we now admit that the EU tasks its courts with a purely political role, there are three implications:

1. The Germany/Poland problem can and must have the same solution – either both re-submit to EU legal supremacy or the EU (collectively) agree to end said supremacy.

2. From a British point of view, the ECJ now stands exposed as a politically compromised entity - and thus not a court.

3. If you ask courts to carry out a political role, they break. They lose legitimacy and their authority.

Those are three legal facts - my expert opinion, if you like. But they have only become clear after the German/Polish developments. This recent development is hugely important for the UK. David Frost, for example, has been protesting that the Northern Ireland Protocol (which the EU is using to carry out what Britain regards as vexatious border checks) is governed by the ECJ. But why should we take the ECJ seriously if Poland and Germany do not?

Again, for the European Union to work, its law must be supreme. It no longer is and any one of the remaining 25 member states could do what Germany and Poland have done – and let’s face it, Hungary looks likely to. This is why it’s worth following the legal scholars working through the implications of this - because whether a great unravelling may now be about to begin or not – this is a major legal crisis.