Democratic Backsliding and the Unravelling of the EU Legal Order

Abstract

Democratic Backsliding and the Unravelling of the EU Legal Order Ronan McCrea (bio) The political world of the EU has often been accused of being a Potemkin village. It had a flag, a parliament and elections, but behind this façade the voters were not really engaged.1 This has fueled a tendency to easily perceive existential crises for the Union. With no real European demos, EU political institutions were seen as hollow and commentators found it easy to predict that they would be swept away when faced with a serious political problem. However, the Union’s legal situation was the opposite. Here a fairly modest institutional impression, namely a single international court sitting in Luxembourg, belied a deeply integrated, almost federal, legal order in which national courts across the Union applied EU law and rulings of the Court of Justice day in day out in the cases that came before them. Academics studying European integration noted the particular prominence of the role of law in the building of the EU, going so far as to describe the process as one of ‘integration through law’ in a seminal study from the late 1980s.2 And they had a point. Enforcement is usually the Achilles heel of international law. Often only states can make complaints of breaches of international obligations and adjudication of such complaints takes place in front of international tribunals whose rulings are difficult to enforce. But EU law was different. The European Court ruled in the 1960s that EU law could be invoked by individuals in front of their national courts and that national judges had a duty to give effect to EU in their rulings (this is known as ‘direct effect’) and to set aside any national law that clashed with EU law (this is known as primacy).3 National judges, for a number of reasons, went along with this and thereby transformed the nature of the European integration project.4 The acceptance of primacy and direct effect had a huge impact on the importance of EU law. Rather than being, as much international law is, a difficult to enforce declaration on paper, EU law was fully binding. This meant that the Union did not need to rely on the Commission to sue states [End Page 168] to hold them to their EU law obligations, it had hundreds of millions of citizens who could potentially enforce EU law against their governments. What is more, if a government defies a ruling of an international court it can be politically embarrassing, but defying the ruling of a national judge would cause a constitutional crisis. With national judges upholding EU law, governments found it very difficult not to comply with European obligations. If the EU legislation was only been a non-binding recommendation rather than binding law, the Union would be a much less powerful political actor. Because its law was really law, member states and the wider world had to pay much more attention to the Union’s decisions. Therefore, the legal integration provided by the caselaw of the Court of Justice gave, from the 1970s onwards, the Union strength and relevance which the degree of political integration did not then justify and which provided an important impetus to the political integration which followed in the 1990s and 2000s. However, I will suggest that we may be witnessing the reversal of the previous situation where legal integration was the Union’s strength and political integration its weakness. Recently the Union’s political integration seems to have shown resilience and momentum while the legal integration, traditionally its strength, is eroding. Political resilience Underestimating the resilience of the European integration project has been a fairly consistent theme of the past decade and a half, particularly amongst anglosphere writers. This is not just a matter of Brexiteer wishful thinking. Leftwing writers such as Paul Krugman in the US were convinced that the Eurozone crisis would bring down the single currency5 while the migration crisis of 2015, Brexit a year later and then the initially limited and ineffective EU response early in the COVID crisis all brought forth statements that the Union was in a crisis it might not survive.6 In...