The EU thread

[Tamas]

So we don't care about the far-right Dutch guy winning the election, then?

[Josquius]

So we don't care about the far-right Dutch guy winning the election, then?

https://languish.org/forums/index.php/topic,16777047.0.html

[Tamas]

pffft

[Sheilbh]

Obviously not just the EU, but Europe-wide - a very important project by the Guardian (with Süddeutsche Zeitung) on the unmarked graves of migrants along Europe's migrant routes:
https://www.theguardian.com/world/ng-interactive/2023/dec/08/revealed-more-than-1000-unmarked-graves-discovered-along-eu-migration-routes

Reminds me of the AP story trying to find the identity of migrants who'd died trying to get to Spain and washed up in the Caribbean.

Also another interesting, useful example of what the Guardian's doing with their European edition - really enjoyed their air pollution project too.

[Zanza]

29k dead just this year. It's a terrible tragedy. Add the huge negative impact it has on European politics and it is just an all-round bad situation. And bound to get worse with climate change. 

[Josquius]

Clearly we just aren't treating foreigners enough like shit. More of the same is bound to solve things!

[Zanza]

Looks like the PiS government in Poland is finally over and Tusk will now be elected. On the same day as Poland's constitutional court not accepting the supremacy of European law again. Let's see if Poland returns long term towards more a more pro-European policy.

[Tamas]

Looks like the PiS government in Poland is finally over and Tusk will now be elected. On the same day as Poland's constitutional court not accepting the supremacy of European law again. Let's see if Poland returns long term towards more a more pro-European policy.

Didn't the German supreme court had a similar ruling a few years ago?

[Zanza]

No, the German constitutional court claimed that the ECJ acted outside its jurisdiction. It did not question the general supremacy of European law.

[Jacob]

Looks like Donald Tusk is the new Prime Minister of Poland

[The Brain]

A mix of Donald Trump and Elon Musk. Yay?

[Sheilbh]

Didn't the German supreme court had a similar ruling a few years ago?

That's been the position of the German Constitutional Court for decades - this goes back to the 70s. But that's slightly separate from the recent case.

The German Constitutional Court's position is basically that the EU derives its legitimacy in relation to German through German constitutional arrangements and is subject to (in particular the limits and rights contained in) the German constitution. The CJEU position is that the EU treaties created a sui generis legal order which must - in order to be effective and meet the purpose of the treaties - be supreme over all domestic law, including constitutional law. From a UK perspective this was most clearly demonstrated when the CJEU confirmed that British courts could overrule Parliament in a conflict between domestic legislation and EU law (that is, Parliament is no longer sovereign), which British courts did, because EU law is supreme.

That's a long-running dispute which has so far never been pushed. The German Constitutional Court has basically always found that the EU's incremental growth in power is sufficiently in accordance with Germany's constitution that it doesn't need to exercise its right of review (which the CJEU doesn't acknowledge). So the question has never been forced. But, from my understanding, the position of the German courts is unique (we were only taught very briefly Germany, France, UK and Italy of differing approaches - so there may be other exceptions). As a matter of EU law, it is wrong.

The more recent ruling is slightly different because it was effectively saying the CJEU - as a matter of European law - was acting ultra vires. The CJEU extraordinarily issued a press release after this pointing out that the EU courts alone have the jurisdiction to rule, as a matter of European law, on what is and isn't ultra vires from any EU institution including the courts. It was a bit like the New York Supreme Court (or, perhaps more pertinently, the South Carolina Supreme Court) saying the US Supreme Court is acting beyond its powers in its ruling on Federal law or that it got Federal law wrong.

The German Constitutional Court is a highly respected and responsible institution - and it doesn't push it. But its decisions on EU law are wrong under EU law and if applied by other member states would lead to the disintegration of the EU. That is the reason that from the 60s (because this isn't in the treaties) the CJEU has asserted their sole jurisdiction over EU law and that EU law is supreme - because if each national court gets to decide what is or isn't within the scope of European law and what EU law means, it doesn't work.

Looks like Donald Tusk is the new Prime Minister of Poland

I've always had a soft spot for him, so good to see. Although co-habiting with a hostile President and not enough votes to overturn vetoes so it may be a little constrained.

[Jacob]

A mix of Donald Trump and Elon Musk. Yay?

But somehow significantly better than the constituent parts.

[Zanza]

@Sheilbh: You should not compare the ultra vires jurisdiction the German court claims with a state supreme court in the US.

In the US, the union is ultimately sovereign and the states are only sovereign within the limits of the US constitution, but not on their own. The ACW clarified that.

In the EU it is not that easy. The member states are still sovereign on their own, independent of the union. See Brexit. If they are sovereign, they obviously only transfer some of their sovereignty to the union. If the union institutions exceed the extent of that transferred sovereignty you get into the territory of the ultra vires review.

Now you know I am in favour of a real sovereign EU, but as it is, I see reason in ultra vires reviews.

[Sheilbh]

It's not a perfect comparison, I accept. It's not a federal state, it's not all part of the same cohesive system - but I think that strengthen's the CJEU position that it is the court with jurisdiction over a sui generis legal order. And fundamentally that's the point - the German Constitutional Court has no jurisdiction to opine on the powers of the EU institutions as a matter of European law, anymore than the CJEU can rule on German Basic Law. They are different legal orders.

The CJEU is really clear on this and has been since the 60s - "the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overriden by domestic legal provisions, however framed, without being deprived of its character as Community law and with the legal basis of the Community itself being called into question." There may be disputes over the power of the EU institutions within the legal order crated by the treaties - the sole courts with the power to decide are the European courts created by that legal order in the treaties, if all the courts are able to review that then Union/Community law disintegrates.

I absolutely accept the US comparison is imperfect - but...at the same time...the position of the German Constitutional Court on this is not a million miles from the nullification crisis where you have South Carolina saying the Federal government is acting unconstitutionally. Again if you just imagine what it would mean for European law if all 27 member state supreme courts in each respective constitutional order was entitled independently to decide: whether the transfer of power necessary to comply with EU law was in line with their constitution (which can be amended as in Hungary), or whether EU institutions (including the courts) are acting within the scope of their powers under EU law.

Total asied but one particular way the EU courts are different from the US is that they issue a single judgement (which can be a bit gnomic), they are always unsigned and are decided on a majority decision. I often wonder how it would be read if we had dissents, or if we knew that foundational decisions like Costa or Van Gend en Loos, which are key in creating the EEC, were decided 4-2. Especially as, in the early days, the court is really the engine of integration - what would that or European law look like if there were alternative legal theories of Europe rather than the authoritative (if sometimes cryptic) single voice?

Edit: Although worth flagging that the CJEU rulings on all of this is basically not based at all on the treaties. There is no provision that EU law is supreme or that the CJEU has exclusive jurisdiction. That is created by the CJEU as necessary to give effect to the treaties. Again it's an American comparison but it is, a bit like Marbury v Madison, a creative leap by the court that is necessary for the logic of the treaties.