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The EU justice commissioner has vowed to fight the proliferation of challenges and legal rulings by member states that have attacked the supremacy of EU law, and warned that they could destroy the union itself.
In an interview with the Financial Times, Didier Reynders said that this rise in the issue of the primacy of EU law – and the European Court of Justice’s right to have the final say – created an “overflowing effect” that had encouraged others to follow his example. .
As a sign of the perceived threat, the European Commission launched the law this month proceedings against Germany in response to a explosive opinion by its constitutional court last year that the ECJ had acted beyond its jurisdiction in a case related to the purchase of European Central Bank bonds.
The next major legal challenge facing Brussels is a decision by the Polish Constitutional Court, which could arrive on July 13, on whether certain elements of EU treaties are compatible with the constitution. The case, presented by the Polish nationalist government, is considered by legal experts to be the most serious challenge still facing the EU legal order.
Reynders said Warsaw had been able to “use the example of the German decision” to present its own case that the Polish constitution and its court took precedence over EU and CJEU treaties.
EU senior officials are increasingly alarmed by these challenges to the supremacy of EU law, whether from Eastern European countries such as Poland and Hungary or from some of the EU’s founding member states, including them Germany and France.
Reynders said he did not realize when he took office that it would be “so important” to uphold the fundamental principles of EU law.
“What is the risk if we do not take care of it? It’s that we will destroy the union itself, “Reynders said. The EU was based on the rules being applied consistently to all its member states, so if that stopped, the bloc could be undermined.
“When we have a problem in one Member State, the risk is an overwhelming effect that you will have in all Member States or in some Member States a tendency to challenge the primacy of EU law and the exclusive jurisdiction of the Court of Justice,” he said. to say.
In France, the government appealed to the Conseil d’État, France’s highest administrative court, to overturn an October ECJ ruling that the collection of data by security services violated privacy rules. Subsequently, Paris was partially rejected by the French court decision in April.
Hungary, meanwhile, has referred a European court ruling overturning its immigration law to its constitutional court instead of accepting the ECJ. decision the end.
As for last year’s German case, its constitutional court said the ECJ had not considered whether purchases of ECB assets were proportionate.
The German court was finally satisfied when you are given more information about the central bank’s strategy. However, Brussels initiated an infringement procedure to defend the principle of supremacy of the ECJ.
“If you don’t stop it, you will have more and more chances for different member states to challenge the primacy of EU law and the jurisdiction of the ECJ,” Reynders said.
Poland is the next most urgent case. Laurent Pech, a professor of European law at the University of Middlesex, said a Polish ruling against the supremacy of the CJEU would amount to “a nuclear strike against the EU legal order”, as “it would not undo a ruling by the CJEU [as in the German case] but the provisions of the EU treaties ”.
In this case, the commission would have little choice but to take legal action against Warsaw.
Reynders said he “did not want to wait weeks and weeks before reacting” to any Polish challenge to the ECJ rulings. He has already taken the unusual step of asking the Polish government to withdraw its petition in the constitutional court before it issues its judgment.
However, Pech and other law scholars have it strongly criticized the commission for not acting quickly and robustly to protect judicial independence in Poland.
Since 2016, the Polish government has partially eliminated supreme court judges through forced withdrawal. He has done the same illegally appointed party loyalists in the constitutional court, it established a new chamber for the discipline of judges and a new law restricting their independence.
However, the commission has only initiated two infringement proceedings against Warsaw since Reynders took office in 2019. Critics say it was also too slow to take action to force Warsaw to comply with previous ECJ rulings. Brussels can ask the court to impose fines on countries that do not comply with European court rulings.
Reynders dismissed the criticism and said, “We don’t have the same deadlines as Twitter.”
The commission has also been attacked by members of the European parliament and legal experts for not immediately activating the EU’s new “conditionality mechanism”, which links EU budget payments with respect for the rule of law.
Reynders said Brussels had begun work on monitoring Member States’ actions and had drawn up guidelines for implementing the new mechanism. A decision would be made on the opening of cases after the summer.
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