There is a rule of law crisis inside the EU. Despite that fact getting very little attention in the UK, the crisis has now reached a point where two eminent academics have stated that the very existence of the EU itself is under threat. Why?

A legal system has a rule of law crisis when there is a breakdown of law. The rule of law is as simple as meaning that there are laws and that they apply to everyone – no one gets to opt out of law. A recurring trope of American fiction is that of a ‘Purge Night’, meaning a night when law itself is suspended and there is no rule of law.

The current EU Crisis began in 2020 when Germany said, via its courts, that EU law did not apply to Germany. Germany used the justification of its own constitution to temporarily suspend EU law — because they did not want to be liable for the massive EU COVID costs. I warned at the time that if you do that — any other member state can do the same. 

Since Germany did what it did, many nations have followed suit — each one suspending, or opting out, of EU law. Each such opt-out damages the rule of law inside the EU. Every time the rules suddenly do not apply to a member state, but do apply to all the others, the very fabric of law is assaulted and undermined. Because it keeps happening, there is a crisis.

Worse, some member states are refusing to back down. Germany officially backed down, but there is nothing to prevent it from doing the same again. Most notably both Poland and Hungary have refused to back down and we have reached the level where Poland is being fined €1 million a day and Hungary is having billions of funding either withheld or denied it.

Yet silence reigns in the UK.

And the EU itself is not a passive victim. Nicole B Scicluna, Assistant Professor in Government & International Studies and Stefan Auer, Associate Professor of European Studies have co-authored an article on the destructive role of the EU’s own court. These are serious and respected voices (Auer was himself twice a Jean Monnet Chair — a highly prestigious EU academic award) and the piece is published by Oxford University. So what do they say?

Well they argue that part of the cause of the current crisis has been in the EU from the beginning. The EU purports to be a legal system, and it has an all powerful court. But from the Treaty of Rome that court, the European Court of Justice (ECJ, or sometimes known as the CJEU) has been given a political function.

The ECJ was given two jobs. Every court in a respectable legal system interprets and upholds law — the ECJ was given this job. But the ECJ was also tasked with advancing ‘ever closer union’. Put simply, that is not interpreting law. Indeed it is not law at all. It is a political policy which pre-supposes all member states wanted ever closer union or understood what that phrase meant.

And it is that political purpose which stopped the ECJ being a respectable court. And the academics write that this second job, as an “engine of integration” has risked tearing the EU apart. Major events, such as the political choice to borrow a lot of money during the pandemic arise, the EU takes the political decision and its political court acts as its willing enforcer. That leaves states like Germany no choice but to “break out” of EU control when they fundamentally disagree.

The theory is an easy one to follow. Many member states have now, at one time or another, suspended the control of EU law. Germany began it because it didn’t want to be liable for more debt. 

France did it because it wanted to have sole control of its foreign policy. So it acted, contra to EU law and treaty obligations the EU agreed with the UK, unilaterally to threaten the UK. It did so by sending boats to UK territorial waters and by illegally threatening the Jersey electricity supply.

Hungary has very clearly suspended EU law because it is angry about the advancement of LGBT rights. Poland has very clearly suspended EU law because it is angry over LGBT rights and over EU attempts to control how Poland appoints its own judges and who gets to be a judge in Poland. I believe the Baltic states have done it over migration. Both Ireland and Romania have now threatened to do it.

But all of these states publicly support EU membership. These are not decisions taken because they dislike the EU — thus they look more like responsive actions to specific instances and policies.

Under this theory, the genesis of the EU rule of law crisis lies not with the reactive member states but with the EU. The rule of law inside the EU was fundamentally fettered from the start. You cannot ask a court to apply laws and advance a political purpose. Or you can, but you’ll break your court and destroy the rule of law. There is no need to blame or single out Germany — they just did what was inevitable, first.

And this is existential for the EU

And this is existential for the EU, because if a country has a rule of law crisis, we’re all still here. All the buildings and land remain. The physical nation state survives the Purge Night (in some way shape or form). The EU is though only a construct of law. Remove that law and beyond a few office buildings with some temporary staff (they will leave pretty quick when pay stops) the EU does not exist.

The total lack of UK interest in this long running and very public crisis is itself fascinating. At the start of this year a respected legal charity is having a series of seminars on the rule of law. Do any of them mention the EU rule of law crisis? They do not. One is devoted to arguing about whether a rude newspaper headline (which has not been repeated) from 7 years ago is a threat to the rule of law (I’ll save you the hour, it isn’t). Leavers and Remainers alike are finally united in not caring about the EU.