Brexit Institute News

Event Report: Legal Disintegration? Brexit, the Judgment of the German Constitutional Court in Weiss and the Future of Europe

On Thursday 17th September the DCU Brexit Institute hosted an event on “Legal Disintegration? Brexit, the Judgment of the German Constitutional Court in Weiss and the Future of Europe”

The event featured an opening remark by Lord Thomas (Member of the House of Lords, and former Lord Chief Justice of England and Wales) followed by a panel discussion between Amelie Champsaur (Partner at Cleary Gottlieb Paris), Mark Dawson (Professor of Law at Hertie School of Governance Berlin), Federico Fabbrini (Professor of Law at DCU and Director of the Brexit Institute) and Daniel Kelemen (Professor of Political Science at Rutgers University, USA), chaired by Mary Hallissey (Law Society).

The event was opened by Professor Daire Keogh, President of Dublin City University, who, inspired by the actual pressing circumstances, quoted a statement by Jean Monnet, one of the founding fathers of the EU: “the important thing is not to be optimistic or pessimistic, but to be determined”. He thus implied that great importance should be given to the process of EU integration and, despite the sometimes difficult developments, it is important to continue to bring it to success with determination.

Lord Thomas opened the event with a short remark, stating how we all – in Europe – share common values and common principles and this should be at the bottom of our approach.

He continued maintaining that the Northern Ireland protocol illustrates perfectly the difficulties of the Brexit process. The Northern Ireland Protocol, being negotiated last-minute, represents a document that is difficult to interpret. In this sense, the British government thought that could use the parliamentary sovereignty (via the approval of the recent Internal Market Bill) as justification not to breach the rule of law. The British government attempted to justify the breach of the WA,  but the EU position is very clear. He continued stressing that what is important for the future are two things: first, the dispute resolution mechanism in the Withdrawal Agreement should be put through more clearly. Usually, these are the last clause agreed and the ones that pose more problems. The second point is rule of law. We forget – he said — that the rule of law is of fundamental importance. How judicial independence is under threat in Hungary and Poland is important, and the EU needs to take action. He concluded reinforcing the concept saying that the basis of a European legal space should be the rule of law.

Amelie Champsaur (Cleary Gottlieb, Paris) started the panel discussion about the famous judgment of the German Constitutional Court (GCC) in Weiss. According to her, the GCC distorted and re-invented some of the key principles of EU law, as proportionality. It established proportionality standards that were extraneous to EU law. The judgment put the ECB in a situation where, in order for the ECB to comply with the judgment, it had to provide documentation to a national court, while the ECB should only answer to an EU Court. So this would imply the ECB should violate its independence requirement.

She then continued discussing the unexpected solution to the Weiss judgment that was recently found by the German government. While the GCC set a deadline of three months for the ECB to provide more information, the ECB published more information on its proportionality assessment (that was in reality an impact assessment) and provided that information to the German government and not to the GCC. Then the German government and the German Parliament adopted a resolution on the basis of which judged sufficient the information provided by the ECB. On this basis, the Bundesbank could continue to participate in the ECB. Legal disintegration was thus avoided, but this can happen only if there is political will, otherwise, the European Commission would have initiated an infringement procedure.

Mark Dawnson (Hertie School of Government) continued the panel, presenting a slightly different position from one of the other speakers. He said that we have several evidences of legal disintegration all over the EU, and seems in essence that law is falling down outside us (Brexit, Poland). However, he thinks the Weiss judgment is not to be associated with those elements that contribute to the formation of legal disintegration.  On the contrary, creating loyal opposition to EU law is key for its survival. We need national actors to have space to legitimately context EU law in order to avoid cases like Brexit or Poland and Hungary.

Daniel Kelemen (Rutgers University), continued the panel focussing on the Weiss judgment. According to him, it is important for constitutional courts to be the guardians of national constitutional law. But the disapplication of the ECJ judgment is not the appropriate solution. Constitutional Courts must rather exercise their influence on their governments to either ask for a change at EU level or, if, as extrema ratio, a compromise cannot be found, ultimately purse a solution alike the UK one. The real threat to the EU is thus that a number of Member States want to stay inside, but they do not want to respect fundamental values, as well as the judgments of the European Court of Justice. If the German Constitutional Court can disapply for whatever reason a judgment of the ECJ, any other national court can maintain a similar position.

Federico Fabbrini (DCU Brexit Institute) agreed with professor Keleman in thinking that semi-exits (alike the ones of Poland and Hungary, who want to remain in the EU but not respecting the values) are more dangerous than real exit. The judgment of the GCC – he continued — leads to a situation where every national court can eventually disagree with the ECJ.

According to him is also important to stress how the UK is semi-exiting the Withdrawal Agreement. This will raise a number of interesting legal questions, like the one in Article 4 of the WA. This article states that the Withdrawal Agreement will have, in the UK legal order, the same effect of EU law in the EU Member States. So, how can an act of the UK Parliament (as the Internal Market Bill) be in breach of a previous act that is hierarchically superior to it?

The panel was followed by a lively discussion on the recent Internal Market Bill, the Withdrawal Agreement and, of course, the width of the judgment of the German Constitutional Court.

DCU Brexit Institute