Inconvenient law

By Jean- Dominique Giuliani

There is considerable controversy about European judges, on the grounds that they impinge on the “legal sovereignty” of EU Member States.

These judges come under two different jurisdictions: the European Court of Human Rights (ECHR), which assesses compliance with the European Convention on Human Rights, which came into force in 1953 and applies to the 47 member states of the Council of Europe, and the Court of Justice of the European Union (CJEU), which assesses the compliance of the acts of the European institutions and the 27 member states with the European treaties.

Both courts can be called upon by states and individuals. The judgments of the ECHR are binding on States, those of the CJEU are binding on States and their national courts, for which it also interprets the common rules.

These courts have been granted these prerogatives by treaties regularly ratified by the States involved. They act only by virtue of powers thus voluntarily and expressly delegated to them.

The Polish Constitutional Court recently took the lead in challenging the competence of the CJEU and the primacy of EU law on the grounds that its decisions or certain treaty provisions were contrary to the national constitution. The German Constitutional Court had at one time flirted with the same reasoning. In France, the approach of the presidential election has triggered the demagogy of those who advocate a “constitutional shield” or the primacy of national law over European law.

If treaties are superior to laws, they are inferior to constitutions. They respect the “constitutional identity of states”. If a state chooses to sign a treaty or to agree to a European text, it must undertake to implement it and, if necessary, to adapt its constitution or legislation. This is the way to ensure reciprocity from its partners.

These treaties strengthen individual and collective rights. They protect citizens, including against their own governments or national laws that threaten freedoms.

It is a serious mistake to attack judges rather than the laws they interpret. This is what autocratic regimes, such as Russia or Turkey, usually do, refusing to implement decisions that protect their opponents.

In these debates, what is at stake is the protection of Human Rights in the strictest sense of the term*. They should be addressed with infinite caution and it is dangerous to offer them to the electoral debate.

Although the law sometimes disturbs, it most often protects!

*(and not “human rights” which do not exist any more than inhuman rights!)