Thread by @garvanwalshe

The governments of Poland and Hungary are deliberately misrepresenting the German Constitutional Court’s judgement on the ECB to bolster their attacks on the EU’s legal order.

Rather than repeat their propaganda, it is important to understand why it’s misleading. THREAD

1/ HU and PL are asserting that it shows that member states can individually decide the applicability of EU law on the grounds that member state constitutional law is superior to EU law (even if EU law is superior to ordinary national legislation)

2/ This is of course not what actually happens. The way the #BVerfG understands the situation rather is through the conferral of competences.

3/ A member state, because it is sovereign, may confer a specific competence on another body, in this case the EU. It does not however confer on the EU the higher-order power to decide for itself what competences the EU has. This power of conferral rests with the member states.

4/ This does not however entail that member states can unilaterally determine what competences are theirs. Though the power to confer competences remains with the member states, two other powers are relevant.

5/ These are

a - the power to “unconfer” or return powers to member states
b - the power (if this is the right term) to interpret whether a member state or an EU institution has the competences to do whatever it has done

6/ The power to return competences to member states does not lie unilaterally with member states. This actually lies with the member states collectively.

They would have to agree a new treaty.

7/ This means that if HU and PL wanted to create a situation where the EU insitutions had less oversight of (say) their judicial systems, they would have to negotiate a new treaty, and secure the agreeemnt of ALL THE OTHER member states.

8/ The second issue has to do with the interpretation of the scope of powers: the ultra vires question the case judged yesterday was about.

9/ This is not something that member states’ judiciaries can do unilaterally either. Rather, as the German Constitutional Court explained, it is something that has to be part of a dialogue between member states courts and the ECJ.

10/ From para 111 of the judgement

“If any member state could readily invoke the authority to decide, though its own courts, on the validity of EU acts, this could undermine the precedence of application accorded to EU law and jeapordise its uniform application”

11/ This is not to say the dualism contained in the Lisbon Treaty can’t cause problems if member state courts try and use it to defy the ECJ, but that dualism is unavoidable as long as the EU isn’t strutcutered to fulfil the German Constitutional Court’s democratic requirements.

12/ These derive from certain unamendable articles in the German constitution, and cause the court to argue that if European representative institutions can’t conduct oversight of powers exercised at European level, then the Bundestag has ot do so on behalf of the German people

13/ This could, I surmise, be dealt with by increasing the powers of the European parliament (it has to do with represntation of diffeing views so increasing the powers of the Council, which only represents executives won’t do)

14/ I’m sure Poland and Hungary could propose such a treaty change is they wanted to :)

15/ More seriously, because they don’t have unamendable articles in their constitutions, the German constitution’s need to balance unamendable constitutional articles and membership of the EU (itself a constitutional provision in Germany) this argument can’t be used by HU and PL.

16/ Finally a point of political strategy. Don’t assume that because Warsaw and Budapest say something it’s a flaw in the EU.

Warsaw and Budapest could just be lying.

Ends.