When the UK decided unilaterally to extend “grace periods” over the imposition of checks on goods in the Irish Sea, it did so in defiance of its treaty obligations under the protocol to the withdrawal agreement. And, to no one’s surprise, the European Commission immediately issued legal proceedings to require compliance in the Court of Justice of the European Union (CJEU).
In its role as the “guardian of the treaties”, the commission is duty-bound to ensure that the rule of law is adhered to across the union – and, as EU officials at the time argued, the option of not suing the UK was simply not on. Suing was not an act of malice or the diplomatic ratcheting up of a confrontation, as some in London sought to portray it. Failure to sue would have been a derogation of duty which would almost certainly have seen the commission itself dragged before the court.
And that is what began this week in the European Parliament where MEPs overwhelmingly decided to sue the commission for its failure to trigger financial sanctions against Poland and Hungary for undermining democratic norms and the rule of law.
Although the commission has previously taken rule-of-law proceedings against both countries – indeed, as recently as this week the latest case against Hungary was launched over the February closedown of Klubradio, an independent radio station – the right to apply financial sanctions over breaches of the rule of law, a controversial new provision of the latest budget regulations, has yet to be tested.
Hungary and Poland
In February, the commission sued over Hungary’s failure to implement a judgment from the CJEU that legislation on restricting foreign-funding of NGOs was against EU rules. And last month an advocate general of the court advised that a reform to Poland’s legal system had dispensed with “the minimum guarantees necessary to ensure the indispensable separation of powers between the executive and the judiciary”.
The commission sued over Hungary's failure to implement a judgment from the CJEU that legislation on restricting foreign-funding of NGOs was against EU rules
Hungary last year fought tooth and nail against the budget clawback provisions and only lifted its veto on the €1.8 trillion seven-year budget and coronavirus recovery plan when, some MEPs allege, it was given private assurances that the clause would not be used. The commission has said that it cannot be triggered until detailed guidelines are published. Its critics say that the EU’s executive is pulling its punches for political reasons.
The MEPs’ resolution passed on Thursday highlights a “failure to act” by the commission under article 265 of EU’s treaties.
Determined to defend the union's legal order and the ultimate predominance of the CJEU in European law, on Wednesday the commission also launched legal action against Germany's constitutional court after its judges cast doubt in 2020 on a massive European Central Bank bond-buying programme said to be "ultra vires", beyond its powers. The CJEU had already approved it.
‘Dangerous precedent’
While the bond-buying, an important element of the EU’s recovery programme, had gone ahead on the back of a conciliatory gesture by the ECB to the court, the commission said on Wednesday it was still taking action because the German court had set a “dangerous precedent” that could undermine the EU and pave the way for other member state courts to challenge the CJEU’s hegemony and the primacy of EU law.
Not mentioned, but clearly in the commission sights, are bad boys Poland, Hungary and the former member but treaty-defying UK.
The litigation against Germany, Poland, Hungary and the UK is profoundly important to preventing the fragmentation of the EU's legal order
The fiercely independent constitutional court in Karlsruhe has considered itself the ultimate arbiter of the legality of EU legislation in Germany, particularly in areas related to fiscal and monetary policy. An embarrassed government in Berlin has tried diplomatically to straddle both sides of the argument , carefully avoiding any explicit criticism of its own court. Or defiance of its rulings.
The litigation against Germany, Poland, Hungary and the UK is profoundly important to preventing the fragmentation of the EU’s legal order. The primacy of EU law in member states is central to ensuring the certainty and consistency of the legal playing field in a single market, an erosion of national courts’ sovereignty necessary to establish a collective sovereignty and rule of law that is the essence of the union.
The legal defence of the protocol’s provisions and proper application, the fate of British sausages notwithstanding, is no less important.