The battle for the rule of law in Poland will have consequences across Europe (Prospect)

Judges from across Europe march in support of their Polish counterparts. Photograph: Grzegorz Żukowski via Flickr

EU institutions have been criticised by eurosceptics across the continent for “meddling” in the internal affairs of member states accused of wrongdoing. But this betrays a basic misunderstanding of what is at stake. All national courts are also European courts, and the European legal system is based on the principle of “mutual recognition”—the notion that a court in one member state can have faith in the decisions made by a court in another. If one part of the system ceases to function, the legal order itself—the foundation of the Union—will break down.

In the absence of political resolution to the ongoing rule of law crisis, the ECJ has felt compelled to intervene. Last year, it took the opportunity of a case brought by Portugese judges challenging austerity measures to reframe its mandate, assuming the right to safeguard the independence of all national judiciaries throughout the Union. This week’s ruling marked the beginning of a new phase of a more interventionist court.

On Monday, the ECJ ruled that the Polish government’s attempt to introduce the new mandatory retirement age contravened European law. The ECJ’s actions echo those of another powerful European institution forced to take action to fill the void left by political leaders—the dramatic intervention in the euro crisis by the European Central Bank (ECB) in 2012, when it too reinterpreted its mandate in developing radical new monetary policy.

You can read my analysis for Prospect Magazine here.

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