EU project ‘undermined’ after Germany broke international law but was never punished

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Last summer, the German Constitutional Court ruled that the European Central Bank (ECB) was acting beyond its legal power with the public assets purchases programme. This has been the cornerstone of the “whatever it takes” approach to preserve the euro set by the bank’s former president, now Italian Prime Minister Mario Draghi. Before that, the German court took another extraordinary step by disregarding the European Court of Justice’s (ECJ) ruling that validated the ECB’s decision.

In its view, the ECJ manifestly went beyond the acceptable standards of legal interpretation.

In a single decision, two blows were struck at the heart of European integration: its common currency and the primacy of EU law.

Twelve months later, Germany remains in breach of that law, but Brussels has taken no steps to sanction or reprimand Berlin.

According to Steven Barrett, a Commercial Chancery barrister, this could have serious repercussions as it “undermines” the whole European project.

Mr Barrett argued countries like Poland and Hungary, which have both faced disciplinary proceedings within the EU over alleged breaches of the rule of law, might not like the fact that Germany is walking away scot-free.

He explained in a column for The Spectator: “The EU has laws that say homosexual, bisexual, and other LGBT people can’t be treated differently. Every one of the EU’s 27 member states signed up to these laws and the EU also promised the UK in a binding legal treaty that the bloc would uphold these rights. It also made the UK promise the same (and we have kept our promise).

“Poland, and its courts, are considering whether or not to simply say ‘no’ to these laws. Just as Germany did.”

It is now right to say that if Poland decides to break this law, or if Hungary does so, or if any other member state does so, that is only possible because of what Germany did, he added.

Whether or not to be a member of the EU was a thorny question in the UK but by treating it as a “political question”, the UK dealt with it properly.

However, Mr Barrett insisted, Germany has done the opposite.

He concluded: “It has left the EU in law, while remaining only in politics. It has declared itself free to pick and choose the EU laws it likes, as it sees fit. This is despite Article 25 of Germany’s constitution saying that ‘general rules of international law shall be an integral part of federal law.’

“That is a promise to obey international law. Written in the country’s constitution. So Germany promises to obey EU law when it signs treaties. It promises to obey international law in its constitution. It does neither.

“And in doing so Germany has left the gate wide open for Poland or anyone else to saunter through.”

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It is not the first sign that some member states are treated differently from others.

In 2003, Paris and Berlin had both overspent, and their budget deficits exceeded the three percent of GDP limit to which they were legally bound.

The Commission – then led by former Italian Prime Minister Romano Prodi – had the power to fine them.

However, the finance ministers of what was then the 15 eurozone member countries gathered in Brussels and voted the Commission down.

They voted not to enforce the rules they had signed up to and which were designed to protect the stability of the single currency.

Britain’s then-Chancellor, Gordon Brown voted with the French and German position.

Mr Prodi told the BBC in 2014: “Clearly, I did not have enough power.

“I tried and they [the finance ministers] told me to shut up.”

Jacques Lafitte, a French finance ministry official, said the technocrats working on the project knew that some central mechanism was needed to make sure member governments complied with the rules.

She said: “We made a number of suggestions to the member states at the time.

“But these were all rejected, because they would have involved transferring sovereignty from national governments to Brussels or maybe Frankfurt.

“We knew deep inside. Again we could not say so publicly.

“We were mere technocrats. We were supposed to shut up and listen to the member states who, almost by definition, knew better. I was convinced it was not enough.”

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Sir John Grant was Britain’s ambassador to the EU at the meeting of finance ministers.

He said: “The credibility of the Commission and the readiness of the member states to accept the authority of the Commission as the independent enforcer of the Maastricht criteria was obviously gravely undermined.”

It was also a signal to everyone else in Europe.

Former Deputy Finance Minister for Greece, Peter Doukas, recalled: “The view was that, ok, if the big boys won’t adhere and impose discipline on themselves, they’re going to be more relaxed in enforcing the treaty [on us].

“I mean, no one can impose sanctions on Germany and France.

“They are the European superpowers. So they won’t adhere.

“The pressure was simply not there.”

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