The European Union's power over its member states was dealt a fresh blow last night after Romania became the latest country to rule that EU treaties do not override national laws.
In a blow to the EU legal order, Romania's constitutional court disputed a second European Court of Justice ruling that said judges in Romania should put EU law above domestic legislation.
"National constitutional courts ruling that EU law does not have supremacy over domestic laws is a development of very serious concern for the European Union," said Professor Gavin Barrett, an EU law expert at University College Dublin.
Brussels has been forced to defend itself against a number of similar challenges by member states. Germany’s and Poland’s constitutional courts have both argued their judges should put domestic law first.
The European Commission is still at loggerheads with Warsaw over its defiance of the supremacy of EU legislation, which prompted fears of a “Polexit”.
The European Commission is still at loggerheads with Warsaw over the supremacy of EU laws, which prompted fears of a “Polexit”. Complaints against Berlin were dropped after the German government sent reassurances that it fully supports the concept of primacy.
Leaders in Warsaw have dismissed that they are attempting to engineer Poland’s departure but warn that it could be forced out of the bloc if Brussels continues to trample over the country’s sovereignty.
The country’s nationalist Law and Justice government has repeatedly challenged EU rules and refused to pay fines imposed by the ECJ since coming into power.
A similar debate over Romania’s future membership has not yet materialised, but polling last year revealed almost 70 per cent of Romanian citizens believe leaving the EU is a price worth paying for defending national interests.
All member states agree to a treaty provision that dictates EU law has primacy over national law. The final arbiter of EU law is the ECJ in Luxembourg, according to the membership treaties.
"Much of the power of the European Union derives from EU law operating uniformly and effectively right across the territory of all 27 Member States. Take that away and each Member State turns into a separate legal zone where the rules on say, the Single Market, and criminal justice cooperation differ from one place to the next," Prof Barrett told the Telegraph.
"In other words, you end up with no unified legal system, no Single Market, and in effect a crippled European Union. In its own way this development is a crisis of greater significance than Brexit has ever been.
"The EU has survived Brexit. But if the view becomes widespread that supremacy no longer holds sway in national courts, then the EU won't survive - at least not in its present form."
EU threatens legal action
Didier Reynders, the EU's justice commissioner, could trigger legal action against Romania, given its top court's "real, permanent and persistent position to go against the EU law or the binding character of the ECJ decisions".
In an interview with the Financial Times, the senior eurocrat said he had not received sufficient reassurances that Bucharest is willing to respect that the bloc's laws must supersede domestic legislation.
"We have received a reaction from the Romanian government saying, 'No, we want to have full respect of primacy... but in the framework of the Romanian constitution.' So it's not exactly the answer that we have received from the German government, without any conditions," he said.
Still part of the project?
Under the Romanian constitution, supremacy of EU law is acknowledged, but when it clashes with domestic legislation, judges are allowed to decide that national rules are superior.
This has raised doubts over Bucharest's commitment to the European project and the independence of its judiciary.
The ECJ is demanding that Romania dismantle a prosecutorial unit for judges, which the Luxembourg-based court said "could be perceived as seeking to establish an instrument of pressure and intimidation with regard to judges".
Romania could follow Poland and be handed multimillion euro fines if it refuses to comply with rulings of the ECJ.
But unlike Warsaw, Bucharest is already receiving payments from the EU's €800 billion coronavirus recovery fund.
Brussels is poised to withhold more than €100 million from Warsaw to cover unpaid fines by the EU's top court.