EU end: Why Poland’s Court of Justice row could finish off Brussels bloc

European Union has a ‘design flaw’ says expert

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As the final arbiter of European Union (EU) law the European Court of Justice (ECJ) has ultimate authority to rule on matters which involve EU member states when their affairs become entangled with the EU’s own legal framework. However, over the past year Germany, Poland and Hungary have all refused to accept decisions handed down by the ECJ, which has led to its own President questioning if the EU can survive when its legal body is being undermined.

Speaking to Politico, the ECJ’s President, Koen Lenaerts, said that recent disputes threaten the future survival of the EU.

He said: “The authority of the Court of Justice and the primacy of EU law have been challenged in various member states, not only by politicians, but also by certain constitutional courts.

“This is an extremely serious situation that threatens the survival of the European project in its current form.”

Mr Lenaerts added that while some founding members of the EU could make the argument that the EU’s powers had evolved beyond what was originally envisaged that newer members – such as Poland and Hungary – could not as they should have acknowledged the EU’s laws before joining.

Last year a dispute emerged between the ECJ and Germany over a ruling by the court to allow the European Central Bank’s bond-buying programs.

The programs are part of an ambitious set of plans from the EU aimed to help recover southern European economies hit hardest by the Covid pandemic.

However, the German Constitutional Court overruled the ECJ’s decision claiming that it “paves the way for a continual erosion of member state competences.”

In October, Poland refused to accept legislation within the EU Treaty and used its own tribunal – the Polish Constitutional Tribunal – to bypass the provisions.

The tribunal decided that crucial rules within the treaty clashed with the Polish Constitution and that they should not prevail.

Nonetheless, the ruling has been questioned by some EU officials who view the tribunal as under the direct control of Poland’s ruling Government.

At the time the Polish Prime Minister, Mateusz Morawiecki, said that treaty provisions safeguarding powers of the national governments “would be null and void if it was only up to the Court of Justice to decide where the line of division is”.

Recently, French politicians have also suggested that ECJ powers must not override France’s own laws.

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Valérie Pécresse, who will be running in next year’s French presidential elections, for Les Républicains, said: “Our constitutional laws, our constitutional identity, each one, each sovereign state, must take precedence over European jurisdiction.”

In the past the ECJ has been accused of a power grab by EU members, which has been cited as a reason for why its rulings are being undermined on occasion.

Mr Lenaerts, though, has hit back at these suggestions and says that the ECJ is simply safeguarding the foundations on which the EU Treaty rests.

He said: “It is our duty to say: We are all bound by these same basic values laid down in Article Two (of the Treaty on the European Union, which includes the rule of law and respect for human rights).”

What is the ECJ?

The ECJ is based in Luxembourg where it oversees the correct application and implementation of EU law. Judges from all EU member states are represented within it.

Cases from the national courts through the ‘preliminary ruling’ system can be heard by the ECJ. This involves a national court referring a question on the interpretation of EU law to it.

The ECJ decides the correct interpretation and sends the case back to the national court for a final decision. It is still up to the national court to decide issues of its own nation’s laws.

The European Commission can also take a case against an EU state to the General Court. These cases ask the court to decide whether the member state is in breach of its obligations to the EU.

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