ECJ president warns EU cannot survive solo runs by member states on rule of law

The president of the EU’s highest court has warned member states that the entire European integration project cannot survive national interpretations of fundamental rights and the rule of law.

The remarks by Prof Koen Lenaerts, president of the European Court of Justice (ECJ), come a week after the Luxembourg court granted a European Commission request to fine Poland €1 million a day until it suspends a supreme court chamber for disciplining judges.

Prof Lenaerts said he would not comment directly on the ongoing legal stand-off between Brussels and Warsaw before the ECJ, but made clear that his court takes a dim view of EU member state solo runs on legal issues of pan-EU importance. “If a state violates the guarantees of the rule of law or fundamental rights, then it violates not only [European] Union law but violates the law of 26 other member states,” he told the Süddeutsche Zeitung daily.

In a conflict that has been building since 2016, Poland’s national conservative Law and Justice (PiS) party has reformed the country’s judiciary to, in its view, sideline lingering structures from the communist era.

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However, critics see a concerted effort to create a new class of politically beholden judges and courts that are no longer independent – a breach of EU law.

A series of European Commission legal challenges to Poland’s judicial reforms have come to a head in recent weeks after Poland’s constitutional court insisted that its national law and constitution had priority over EU law. This reflects the thinking of Poland’s government that EU bodies have no business intruding on issues of national sovereignty, such as the Polish judiciary.

‘Not on’

Without commenting directly on Poland, Prof Lenaerts said it was “not on” for member states to ignore the resulting obligations – such as pooled sovereignty – that they had signed up to by joining the EU.

His court’s main task – to guard the bloc’s treaties and preserve the rule of law in the EU – was of existential importance for the EU’s future.

“The rule of law is essential, the precondition for the union’s cohesion,” he said. “Member states trust each other that they share these values. Only in this way can a common legal area function, and part of this is the prioritisation of the application of EU law.”

Rather than view European and national law as involving a hierarchy, with the ECJ as the final instance, he urged member states to view EU law as the pooled law of 27 countries, which always takes precedence over laws that may emerge from day-to-day politics in member states.

Poland’s prime minister, Mateusz Morawiecki, has described as “blackmail” demands of some EU member states that Warsaw roll back some of its judicial reforms – or do without European funds.

Speaking on the fringes of the Cop26 UN climate conference in Glasgow, Mr Morawiecki warned that withholding EU funds could endanger Poland’s pivot away from coal, the source of 70 per cent of its energy.

“Any attempt to take away funds . . . will mean that political blackmail from Brussels dominates over the achievement of climate goals,” he said.