Thread by @AndrewPRLevi

“EU Rule of Law Crisis”

What’s going on?

1. Poland’s government is dismantling democracy, taking over the courts & ripping up its legally binding EU treaty commitments.

2. Germany’s highest court has ruled in one, technical judgement that the ECJ exceeded its powers.

A 🧵/1.

The European Court of Justice (ECJ) is the highest instance in the EU for the interpretation of legal obligations arising from the EU treaties, including relevant legislation. /2.

By acceding to the EU treaties the member states legally bind themselves to respect the ECJ’s judgements &, of course, the treaties themselves & relevant legislation. There are no two ways about it. /3.

Poland’s government is busy destroying the fundamental pillars of the country’s democratic, constitutional order. One of those is the independence of the courts. These are now being turned into mere political instruments of the executive. “Courts” directed by the government. /4.

Naturally, the ECJ is beyond the reach of the Polish government.

The latter has created a “constitutional tribunal” which it has packed with its place-people. /5.

They have duly handed down a “judgement” which, were it to have legal & practical force, would have the effect of cancelling the EU treaties in Poland, whenever a national court there felt like it. Clearly that’s in breach of Poland’s international/EU legal commitments. /6.

It’s untenable for an EU member state.

This isn’t so much an “EU rule of law crisis” as an existential domestic crisis for Poland & its continued membership of the EU. The latter now hangs by a thread. Rightly.

The EU can survive Poland’s exit. Better than cancer within. /7.

The German Constitutional Court judgement was on a narrow technical matter & taken by a properly constituted, independent court. To that extent, neither an internal threat to the German democratic constitutional order (which is in good health) nor the EU’s legal order. /8.

However, the nature of the German judgement - to set aside an ECJ judgement on the basis that the ECJ had been acting outside its powers - is highly problematic. If that can be done on a narrow technical issue one day, why not on a major one the next? /9.

The German court was careful (unlike the Polish “court”) to note that it respected the ECJ’s jurisdiction in general, just not in the specific, narrow case. But that isn’t good enough. /10.

What, after all, would the German Constitutional Court say if lower German courts decided to set aside its judgements? Legal chaos would, if not immediately then eventually, ensue. It isn’t on. And the breach of EU legal order has to be ruled on & remedied - by the ECJ. /11.

The nature of the EU (previously EC/EEC/ECSC) legal order, & the ECJ, is set out superbly clearly, concisely & expertly in the attached 1996 article by British ECJ judge Sir David Edwards. (Thanks to @GeorgePeretzQC for highlighting). Please read it!👇/12.
law.du.edu/documents/judg…

There’s a fashion for legal “experts” & like-minded polemicists to write tendentious, ill-informed, ideologically motivated articles in journals cheerleading the Johnson Brexit. Their analyses are as valid as would be a psychiatrist’s diagnosis of a patient’s liver cancer. /13.

Their purpose is, naturally, not understanding. It’s political tub-thumping for the UK government’s & its international collaborators’ efforts to wreck the EU, & the American-led Euro-Atlantic & global order which protects it - of which it is an existentially vital pillar. /14.

The authors are the (more or less) witting foot-soldiers in a fight to destroy the political & economic systems which provide the essential foundation for our security, prosperity & well-being. /15.

To be replaced with a dystopian playground, to the benefit of a tiny, hyper-powerful clique. The nativist authoritarians this “elite” seek to exploit to achieve these aims are mere, low-value cannon fodder. /16.

That the outcome will almost certainly be chaotic & catastrophic is a fine irony.

But no comfort.

It’s our world, after all. /17.

There’s no need to love the ECJ & the EU legal order. There is a need to understand it. Properly. And what the attempts to undermine it entail.

You don’t know what you’ve got ’til it’s gone. /18.

Finally: once more, a reminder of a key part of the current context for UK Brexit ideologists’ participation in the concerted assault on the EU legal order & the ECJ👇/19. End

https://twitter.com/andrewprlevi/status/1452165657307529217

P.S. Here, from May 2020, is an easily accessible summary of the German Constitutional Court judgement & its context👇

eulawlive.com/german-constit…

And here (a little less easy to read, I’m afraid) is a short piece on the Polish case👇

eulawlive.com/polish-constit…