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. The case against Germany has still not begun, which has allowed the Polish courts to simply saunter through the hole in the EU which Germany opened up and the Commission did not fix.
The argument between the EU and Poland has been going on for a long time. Throughout 2018 and 2019 the ECJ ruled that Poland was in breach of EU law. The argument escalated in April 2020 when the ECJ ordered Poland to suspend its own courts. Poland ignored them.
On 6 May the new Advocate General of the EU gave an opinion – EU Courts are odd in that they have this person who gives opinions in advance of the judges, but who the EU judges can ignore if they want to. This Advocate General said Polish laws were in breach of the treaty.
On 14 July the EU again said, via the ECJ, that Poland must suspend its court. The Polish court ignored them and said the EU is ‘ultra vires’. On 15 July the EU again found Poland in breach of the rule of law.
The Polish government argues that the ECJ is engaged in politics and not law. But the finding of the Polish court is based on the idea that if the EU tries to do something that the Polish constitution won’t allow, then the Polish constitution wins. The German legal argument.
The EU Commission has said that it will take swift action against Poland. It certainly has taken more action against Poland than it ever took against Germany.
But the whole pickle is a problem for the UK as well because the EU is supposed to uphold the rule of law – and it promised to do so under our new post-Brexit treaty. For the UK, both EU member states and the EU itself must uphold the rule of law.
As I explained here, the EU is bound by treaty obligation to the UK to uphold the rule of law – but oddly so is each Member State (all 27 members). Thus Poland is also bound by its own promise. So it won’t matter to the UK which is right in this fight between the EU and Poland – one of them is in breach.
What is worth noting is how directly this links back to the original actions of the German courts. The Polish courts will say ‘we are only doing what the Germans did’ and that is a hard problem to ignore. If there is a political fudge, that still leaves 25 other states who can exploit this loophole.
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