Fierce Controversy in European Union: National Sovereign Law versus EU Law

By Elisabeth Hellenbroich

Since the last EU heads of state summit (15^th of June), a stormy debate has broken out among leading juridical experts as well as journalists in Germany – who in the last weeks have begun to passionately discuss about the question, on what basis of principles a future European Union should be based. The question is whether the EU should be the “guardian of laws”, including national laws in a given member state (this includes the nation’s right for education, justice, and budgetary questions) and whether European law takes precedence over national law, if so to speak “the final word on EU law is always spoken in Luxembourg (the location of the European Court of Justice),” in the words of one EU official recently.

An illustrative example for the debate is a commentary that was written by European – and International Law expert from the Tübingen University, Prof. Martin Nettesheim (FAZ 14.07.21) under the headline “Who is the guardian of the constitution?”  Nettesheim expressed something that is a latent feeling among many EU citizens: the concern that the EU bureaucracy, which is widely detached from the citizenry of the member states, may “instrumentalize (EU) law.” He underlined that the EU was never a “Federal State” (Bundesstaat), but that under the cover of “integration”, the EU was defining “EU values” for the member states (such as “democracy” and “rule of law”) by taking some core elements of the constitutional autonomy out of the hands of the member states. According to Nettesheim the present EU treaty does not imply a “supranational mandate to act”. It is not based on a European citizenry and it has thus provoked an open debate to what extent the EU is legitimized to be the “Guardian of EU values” which is proclaimed as “Community of Values”. This is especially the case since the EU has announced its fight against “illiberal, anti-pluralist government policies” as their primary field of action.

In the effort to enforce by way of “administrative mechanisms” certain EU standards, various initiatives have been taken by the EU Commission against member states: This involves for example  the so called “infringement procedure”, launched by the European Commission  against Germany as a member state of the EU, in response to a judgement made by the German Constitutional Court May 5^th 2020, which qualified the ECB unlimited purchasing Program of Government Bonds, as a measure that went beyond the “competencies of the EU Commission”- and thus stands in contrast to the National Law of EU member states.

In reaction to the announcement of “infringement procedures “against Germany, the former chairman of the German Constitutional Court, Hans- Jürgen Papier (2002-2010 Chairman of the German Constitutional Court) gave an interview to the Swiss Daily NZZ (25.07.21), in which Papier emphasized that “the European Union is not a federal state with universal jurisdiction. As a treaty union of sovereign states, it must accept that in exceptional cases constitutional limits may be imposed by national courts.”

He referred to the fact that the European Commission had been unhappy about a rule made by the German Constitutional Court (Karlsruhe). This was triggered by a ruling in May 2020, when the judges in Karlsruhe declared that the European Central Bank had exceeded its powers with the government bond purchase program. This would provoke the question: Which law is binding for Germany? European or national law? Papier referred to the fact that the “European Court of Justice” (EuGH- Luxemburg) had fully approved the purchase program for government bonds issued by the ECB, in May 2020. He added that the fundamental question is whether European law takes precedence over national law in every case.

“The German Constitutional Court also accepts the primacy of European law in principle. But the legal act in question must not move outside the mandate given to the EU by the member states; it must not be ultra vires, as they say, beyond the competences granted. In particular, the core of identity of the German constitution must not be compromised. And this core includes parliamentary democracy along with the budgetary autonomy of the popularly elected Bundestag.”

EU commission “infringement procedures” also targeting Hungary and Poland   

The EU commission under Commission Chairwoman Ursula von der Leyen has also been harshly speaking against the two EU member states Hungary and Poland, announcing “infringement procedures” against these two states. In Poland the complaint had been triggered by measures taken by the Polish justice system, which proclaims the right of Poland to “discipline” unpleasant Polish judges. In response the EU commission has demanded from Poland to abolish the “judicial law” since it violates core principles of the EU Charter, otherwise it will call for infringement procedures. A similar case erupted in respect to Hungary, when the EU commission in mid-June took measures in response to a Hungarian law that had been voted upon by the Hungarian parliament concerning LGBT. The law while being tolerant on homosexuality, does state that in Hungary it’s the parents who should have a say on the sexual education of minors; equally the law wants to prevent that books get sold to minors, that propagandize favorably homosexuality and give guidelines to minors for transgender operations. This law has unleashed a major freak out within the EU und the leading EU media, culminating in the harsh condemnation of Prime Minister Victor Orbán, as well as with in the call that Orbán should leave the EU. This was voiced by Netherlands’ Prime Minister Mark Rutte who had explicitly called upon Hungary to leave the EU, while Luxemburg Foreign Minister Asselborn called for a referendum in the EU to decide whether they should tolerate any further Victor Orbán.

The well- known German Lawyer Peter Gauweiler commented in a longer commentary in the FAZ that Chancellor Merkel would not have survived 2017, if Orbán had not closed the Balkan Route. He also pointed out that when the Soviet Empire was crumbling, the Hungarian Foreign Minister Guyla Horn and Otto von Habsburg had opened the border in Sopron, which laid the basis for a political phase change in Europe.

In a “Tagesspiegel” article on the 23^rd of July Christoph von Marschall (Chief correspondent to the US) commented that the conflict “EU versus national constitutional law” had the potential to “throw back Europe for decades.” He further stated that anybody who wished that Europe progresses must consider that the “citizens in each member state” should be convinced.  “The basis for the legal legitimation of the EU are the ‘nation states’.  And whatever the EU is empowered to do, it is based on those powers which the member states have transferred to the EU. The organization of Justice is not part of this, as well as what is taught in the sex education classes and what say the parents have in all this. Hence if the EU argues that it can interfere in those European values such as democracy, rule of law, equal treatment, this is built on thin ice.”

Which community of values?

In line with his argument was also the well- known FAZ journalist Georg Hefty, who was born in Hungary and who for many years was the leading editor of FAZ domestic editorial. In an article: “Which community of values?”(29^th July 2021 FAZ) Hefty strongly attacked the Netherland Prime Minister Mark Rutte who had stated during the last EU summit that “Hungary had no place in the EU.” Hefty commented that this “is indirectly helping Victor Orbán”, who has told his people, that Brussels doesn’t like Hungary. Similarly, the statement made by Luxemburg Foreign Minister Asselborn who had suggested that there should be a referendum in the EU about the question whether there could be any further tolerance of Victor Orbán in the EU. According to Hefty these two statements have no “legal basis.” He further stated that the conflict about the LGBTQ has touched upon the “Community of Values”: cultural sovereignty, parliamentarianism and freedom of elections which are the core principles of democracy. Two decades ago nobody in Germany cared about LGBT, Hefty wrote, but during the last years a transformation had occurred so that only in 2017 Germany okayed the homosexual marriage (France in 2013 etc.) The essence of conflict with Hungary is a Hungarian law that was decided and voted upon by the Hungarian parliament, Hefty commented and he stated that the declarations of Rutte and Asselborn were essentially contrary to the EU principles.

Hypocrisy from EU towards Russia and China

But this militant line and arrogance from the EU as which conceives itself as “Western community of values” has not only created conflict within the EU, but it has also led to a deepening rift between the EU- Russia and China. The issue is the same as it is in the case of EU- law versus law of EU member states: This is best illustrated by an interview in the Russian magazine “Argumenty y Fakti” (July 31), where under the headline “A New Cold War has already started, but Russia and China are winning against a ‘Weakening’ West”, former Kremlin adviser and foreign policy expert Prof. Sergej Karaganov, described the  dilemma concerning the question of western values versus values of sovereign nation states.

A synopsis of the interview in RT (31.07.) stated that according to Karaganov, while the SU had been concerned with enemies on more than one front (…) “now with Beijing on the side of Moscow, Russia can utilize China as a strategic resource. Secondly the country is much more prosperous than it was during the latter years of the USSR.  And most importantly, the West is significantly less powerful than it was in the past.” Karaganov emphasized that Russia will “not sell our sovereignty to anyone…I also hope for the wisdom of the Chinese political class. If I were Chinese, I would never do anything against Russia.”  He stated further that China isn’t Russia’s only close partner but that Moscow has now friendly relations with most Arab countries, Iran, India and even with some European Union states such as Hungary and Austria.” According to Karaganov “we are seeing a watershed. We will find out who will be part of Greater America- like the US and North-West Europe- and who will be on the side of ‘Greater Eurasia’. ..The big question is where Germany will end up.”

Only very few Germans speak up

Theo Sommer, former editor of the Weekly “Die Zeit” and close friend of Henry Kissinger as well as former participant at the “Valdai discussion Club”, in an Op-ed (Die Zeit 29.06) called for a closer dialogue with President Putin. He particularly harshly criticized that at the recent EU summit some Eastern European Governments (Poland and Baltic States) had bluntly rejected the Merkel- Macron proposal to meet Putin in the EU, in order to discuss the common challenges. Sommer noted that some of these EU members which are traumatized by their past, rejected the proposal. “The eminently important discussions about Western European problems with the leadership in Moscow thus were transferred to the US, which is “intolerable”, Sommer stated. Merkel has supported all sanctions (Crimea and Nawalny). She took care that Ukraine remains reliable as transit country and receives transit fees, while the German army is involved in the frame of “Enhanced forward presence” in Eastern Europe, participating in military securitization. Sommer emphasized that Putin never will give up Crimea which is Russian since 1783.

“To freeze relations with Russia is as fruitless as is the blockade of Cuba. There are enough problems to discuss. Minsk II, Donbass, Eastern Ukraine, Georgia, Transnistria and the question of strategic stability and arms control in Europe, Cyber threats, Climate change, JCPOA and Syrian assistance (…) Since quite a  while, I think that we need something like the Vienna Congress 1815, or the CSCE . “The West never understood that the binding in of Russia’s near- abroad (Ukraine and Georgia) into the NATO and US American zone of influence at the Russian door, could never have been perceived by any Russian president other than a ‘hostile act’. It drove Russia into the arms of China.” And he quoted from a commentary written by President Putin for “Die Zeit” at the occasion of commemoration of the anniversary of the invasion of the Soviet Union: “We can’t afford to carry around the burden of former misunderstandings, insults, conflicts and mistakes,” Putin wrote. “Russia pleads for the reconstitution of a full partnership with Europe,” Sommer ends his commentary, urging that Merkel and Macron should go against the veto of some minorities within the EU.