The European Union risks collapse unless Brussels can stem the flow of countries challenging the bloc’s rule of thumb, a legal expert has said, after Romania became the latest to decide that EU treaties do not override national laws.
In a blow to the EU legal order, the Bucharest-based Constitutional Court challenged two rulings by the European Court of Justice that said Romanian judges should place EU law above national law.
“National constitutional courts ruling that EU law does not have supremacy over national laws is a very worrying development for the European Union,” said EU law expert Professor Gavin Barrett. from University College Dublin.
Brussels has been forced to defend itself against a number of similar challenges launched by member states. German and Polish constitutional courts have both argued that their judges should give priority to national law.
The European Commission is still at odds with Warsaw over its disregard for the supremacy of European law, raising fears of a “Polexit”. The complaints against Berlin were dropped after the German government sent assurances that it fully supported the concept of primacy.
All member states agree on a treaty provision that dictates that EU law takes precedence over national law. The final arbiter of EU law is the ECJ in Luxembourg, in accordance with the accession treaties.
“Much of the power of the European Union derives from EU law which applies uniformly and effectively throughout the territory of the 27 Member States. Take that away and each member state becomes a legal space where rules relating to, for example, the single market and criminal justice cooperation differ from place to place,” Prof Barrett told the Telegraph.
“In other words, you end up without a unified legal system, without a single market and, in effect, with a paralyzed European Union. In its own way, this development is a bigger crisis than Brexit. has already been.
“The EU survived Brexit. But if the idea becomes widespread that supremacy no longer exists in national courts, then the EU will not survive – at least not in its current form.
EU threatens legal action
Didier Reynders, the EU justice commissioner, could take legal action against Romania, given the “real, permanent and persistent position of its Supreme Court to go against the law of the EU or the binding nature of ECJ decisions”.
In an interview with TBEN, the senior Eurocrat said he had not received enough assurances that Bucharest is willing to abide by the bloc’s laws to replace national legislation.
“We received a reaction from the Romanian government saying: ‘No, we want to fully respect the primacy… but within the framework of the Romanian constitution.’ So that’s not exactly the response we received from the German government, with no strings attached,” he said.
Still in the project?
Under Romania’s constitution, the supremacy of EU law is recognised, but when it conflicts with national law, judges are allowed to decide that national rules are superior.
This raised doubts about Bucharest’s commitment to the European project and the independence of its judiciary.
The CJEU calls on Romania to dismantle a prosecution unit for judges, which the Luxembourg-based court said “could be seen as seeking to establish an instrument of pressure and intimidation against judges”.
Romania could follow Poland and be fined millions of euros if it refuses to comply with ECJ rulings.
But unlike Warsaw, Bucharest is already receiving payments from the EU’s €800bn (£668bn) coronavirus recovery fund.
Brussels is set to withhold more than 100m euros (£83.5bn) from Warsaw to cover unpaid fines by the EU’s top court.