Legal drift, not exit, is the existential threat to EU

A DCU Brexit Institute webinar on legal disintegration in the EU, sponsored by Cleary Gottlieb in Paris, heard that robust structures of dialogue are necessary in order to deal with the ‘grim realities’ of authoritarian states in the union.

‘Legal Disintegration? Brexit, the Judgment of the German Constitutional Court in Weiss and the Future of Europe’, was addressed first by former chief justice of England and Wales Lord Thomas, who said that respect for the rule of law is sacrosanct.

Professor Mark Dawson of Berlin’s Hertie University observed that the new defence for breaching international law seems to be that one is allowed to breach it a little bit, in reference to the UK Internal Market Bill.

He said, however, that questioning and disrupting central institutions is an important part of what allows European law to work.

He distinguished Brexit from the Weiss decision  on the European Central Bank’s asset-buying programme, in that protecting the EU legal order allows for some kind of space in which individuals, and not just states, can use European law to question exclusionary or arbitrary practices.

The Schrems case on data protection is an example of an action that contests both national practices and EU authority on fundamental rights, he pointed out.

“There is no faithful reading of legal integration that defends the undermining of judicial independence,” he said.

He referred to ‘captured’ Polish and Hungarian courts which use constitutional identity to violate or to remove supervision of rule of law standards.

“The defiance of EU law seen in those cases is conducted in bad faith,” he continued.

Dawson argued that there are faithful readings of the Weiss case,  under the jurisprudence of the German constitutional court, that are compatible with rule of law values, and legal integration.

“Implicit in this judgment are a lot of ideas that are also implicit in legal integration in Europe more broadly,” he said, such as that EU executive institutions should not have unlimited discretion to determine the range of instruments that they can use to achieve their policy objectives.

Limits to the powers of the institutions are a matter for the member states.

The idea of proportionality means that certain policy options have to be ruled out because EU actors have to balance interests in a fair way.

Professor Dawson said that while the Weiss ruling got a lot of things wrong, it wasn’t wrong in principle. 

There were real rule of law problems regarding the distributive effects of a quantitative easing programme which the EU Court of Justice hadn’t sufficiently analysed and therefore there was sufficient room for the German court to take on that role, of ensuring that these core principles were enforced.

Paradigm

Professor Dawson concluded  that using national constitutional law as a vehicle to force the institutions to address certain issues of legality seemed to be part of the paradigm on integration, not a departure from it.

The idea of loyal opposition in politics means one has a duty to forward national interest, and a duty to criticise and to keep government in check.

To do so is not something that is treasonous, it’s actually loyalty to the cause of parliamentary democracy, he said.

“Loyal legal opposition in European law is necessary for its survival,” he said.

Professor R Dan Kelemen of Rutgers University said that fears that Brexit would cause other states to follow the UK out were unfounded and said that further exits do not seem likely at all.

“Exit is not the existential threat facing the Union,” he said.

“Rather the real threat to the EU is that a number of members states want to stay in but not respect its fundamental values such as democracy and the rule of law,” he said.

“And along with that, to not respect judgments of the EUCJ that might seek to defend those principles. That’s the real threat.”

If the German federal constitutional court can disapply EUCJ rulings, then so can the court of any other member state, including courts that are captured by authoritarian governments.

Serious defiance

He said the Weiss ruling was the most serious defiance of the EUCJ’s authority in the EU’s history.

“By rejecting that ruling, the court said it was in effect the ultimate interpreter of EU law in Germany. It really crossed a Rubicon with that ruling.”

Former England and Wales Chief Justice Lord Thomas said that common values and principles should be at the centre of any approach.

Lord Thomas, who sits on the House of Lords EU Committee, said the Brexit agreement is lengthy and complex and the Northern Ireland Protocol has produced a document that is not easy to follow and was drafted in a way which left many questions still to be answered.

He said articles 4, 5, 6 and 10 attempt to deal with irreconcilable positions and need careful reading.

He continued that the rule of law requires compliance by the state with its obligations in international law, just as with national law.

Dispute resolution

Dispute resolution mechanisms must be thought through much more clearly, he said, because not enough attention is paid to those clauses and they are often the last thing agreed.

The mechanism doesn’t operate quickly enough, he believes.

“It should have been apparent that this treaty would cause problems,” he said.

Proper mechanisms would operate speedily and both parties would have confidence using them, he said

“It’s a matter of regret that the British Government has not invoked those mechanisms,” he said.

Lord Thomas said the spirit of constitutional conventions can be forgotten at times.

The convention that the civil service should do what it can to uphold the rule of law has worked so far in the UK, he said.

Glue 

“It is to my mind important that we do everything we can to strengthen these conventions which are the glue that holds everything together,” Lord Thomas said.

“We forget that the rule of law is of fundamental importance... the way in which the judiciary’s independence in under threat in Poland and Hungary is a very strong worry in relation to the rule of law, and does have implications for long-term legal stability.

“I very much hope therefore that, when we are moving forward, that we do realise that we have a common legal heritage,” he said.

Amelie Champsaur of Cleary Gottlieb in Paris said that the Weiss judgment was a ‘thunderous event’ among lawyers.

Virulent

It was shocking from a legal standpoint because it indicated that the institutions had violated EU law, she said.

This ruling was virulent in attacking the judgment of the EU general court, Champsaur said.

This was more than a disagreement between two courts, she said, but a subversion of key EU law concepts, in order to reach its conclusion.

Finally, the judgment was surprising insofar as it was coercive of the Bundesbank to provide documentary information to the national courts.

It put the ECB in a situation where it had to violate the treaty’s independence requirement in order to comply with the judgment, she continued, and so went above and beyond previous similar cases.

Subvert

It wasn’t a disagreement so much as the manifestation of a will to subvert the EU legal system, Champsaur believed.

The judgment was criticised not only by EU legal scholars but also by reputable German lawyers and judges, she said.

However, Amelie stressed that legal disintegration was avoided, as in the past, by a reining-in of the national courts, and swift action by the German government.

But this will only be the case if there is a political willingness to uphold the existing legal system.

Professor Federico Fabbrini (small picture) said that the EU was from the beginning a project of integration through the law, not through an army or a police force that keeps countries together.

Threat

“It’s just the law and respect for common rules,” he said.

Fabbrini believes that semi-exits are more dangerous for the EU than exits and pose a greater threat to its future.

“At least in Brexit, you have a more orderly procedure, using Article 50. I am worried about the judgment of the German constitutional court because it leads to a situation where every court can pick and choose which part of EU law it wants to abide by.

“I think this is seriously dangerous because the foundation of the legal order is called into question,” he continued.

'Semi-exit'

However the UK is now trying to renege on what it signed up to, or semi-exit, he said, by violating selective provisions of the treaty, which will raise interesting legal questions.

Lord Thomas reiterated that governments must abide by the rule of law and not take unilateral action.

“That applies right across the board, whether it’s internal EU issues or inter-state relations, and certainly it applies to the way in which courts should be allowed to operate.”

Professor Dawson warned against ‘weaponising’ relations between courts with infringement actions or sanctions.

Poison

That would “potentially poison what is, so far, a rather chummy relation,” he said.

Professor Kelemen, however, said that not responding to these kinds of cases could cause them to proliferate, and lead to a growing defiance from national constitutional courts to the authority of the EUCJ.

He added that it was clear that the UK Government was acting in bad faith in relation to the withdrawal agreement and the backstop.

“They knew very well that they were agreeing to a border down the Irish Sea, in terms of customs checks. Now they are just lying about it because it turns out that’s very uncomfortable to do to your own country,” he said.

Breakdown

Professor Kelemen said that the Weiss judgment indicates a failure of dialogue but Dutch and German courts already refuse to extradite  to Poland because of a fear about fair trials.

“It’s not going to stop with European Arrest Warrants, it’s going to the Brussels Regulation, the mutual recognition of judgments. And eventually you have the breakdown of the Single Market.

“Dialogue is great but dialogue with autocrats is bad, and it doesn’t work.

“Any system that relies on dialogue has to have structures that are robust to the grim realities we face today,” he said.

Exit mechanism

Amelie Champsaur said there should be an exit mechanism to kick out member states, instead of just allowing them to leave.

Professor Kelemen answered that this would create problems for oppressed citizens in those states.

“The problem isn’t that states want to leave, it’s that they want to stay and take the money, and all the benefits.”