For many years, the European Commission and the European Court of Justice have been usurping authority over migration and criminal proceedings from member states. This blurring of state sovereignty—which has brought the legitimacy of EU institutions into question—has its origin in the foundations of European law, which rests partially on treaties agreed upon by member states. Despite this, EU institutions have never shown respect for popular will. Parliament has virtually no power, and so treaties are implemented without the approval of members.
Along with these treaties, the Court of Justice serves as a source of law. Its official role is to oversee uniform legal application in accordance with its mission of “preserving the values of the EU.” However, the court has been gradually increasing its power over national judiciaries. This encroachment began with the 1964 decision, Costa v Enel, when the court decided that European law has primacy over any conflicting national law.
This allows the CJEU to heavily influence policy in member states on issues like migration and security, among others. However, the extent of the court’s authority is a problem for member states that are grounded in a Romano-Germanic legal tradition. In this framework, law and sovereignty belongs exclusively to the people. As Montesquieu said, “the judge is the mouth of the law,” nothing more.
Conforming criminal code
First, criminal procedure is being targeted by the Court of Justice. As a result, throughout Europe, criminal law is conforming in member states. The push for uniformity may seem logical, but its effect on national sovereignty is destructive. A good example is the court’s 2020 decision which ruled that governments cannot compel phone operators to share their clients data, even for persons suspected of terrorism or serious crime.
This constant change of legal provisions has hurt many police investigations and makes future investigations more difficult. This could be easily dismissed as a delay in the implementation of unified European law, but it is a real issue. In France, crime-solving rates have been falling because of these rulings: in 2016, 70% of homicides were solved, in 2020, only 62%.
The Court of Justice has also concentrated its efforts on immigration policies all over Europe. As a result, being an illegal alien in the EU is no longer considered a crime, and because of this, the court refuses to engage in criminal proceedings. Many member states have complied with this decision.
To enforce this, the CJEU attacked EU members who have not conformed with this lenient framework. On April 2nd, 2020, the court ruled that Poland, Hungary, and the Czech Republic were violating the law by refusing to apply mandatory relocation following the 2015 migrant wave.
On May 14th, 2020, Hungary was condemned for keeping an illegal migrant inside a transit zone for four weeks while he waited for his asylum request to be examined (it was subsequently denied).
On December 17th, 2020, Hungary was condemned again by the court because Budapest decided that migrants from neighboring Serbia could only present their asylum request from transit zones.
‘European values‘
The main issue with this legal unification is that it follows a predetermined agenda. Officially, this agenda is marketed as the protection of ‘European values.’ The question is, what are these values and who decides them?
The Treaty of Rome in 1957 originally designated “peace and freedom” as European values. Over time, the list has grown. In 1992, the Maastricht Treaty enumerated “freedom, democracy, human rights, fundamental rights, and the rule of law.”
The 2007 Lisbon Treaty talks of “respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities. … in a society in which pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men prevail.”
In the meantime, the EU’s charter of fundamental rights was ratified, adding another 54 values, including the quality of the environment, social exclusion, solidarity between generations, free trade, and children’s rights. These values are supposed to be common to all member states, but the sentences against Hungary or Poland indicate that they are not universally accepted.
This polytheism of values has no hierarchy and constitutes a resource of justifications by which different European institutions can support whatever decisions they want.
In conclusion, what the EU promotes in terms of migration and security is an ever-growing defence of individual rights at the expense of the collective interest of European societies. The 2020 terrorist attack in Nice by a Tunisian migrant took the lives of three European citizens. Had Italy or France been able to arrest the terrorist for illegal entry, those citizens would still be alive. Under the justification of non-discrimination, illegal migrants, citizens suspected of crime, and upright Europeans are all considered the same.
That is not justice.
‘European Values’ Threaten European Security
For many years, the European Commission and the European Court of Justice have been usurping authority over migration and criminal proceedings from member states. This blurring of state sovereignty—which has brought the legitimacy of EU institutions into question—has its origin in the foundations of European law, which rests partially on treaties agreed upon by member states. Despite this, EU institutions have never shown respect for popular will. Parliament has virtually no power, and so treaties are implemented without the approval of members.
Along with these treaties, the Court of Justice serves as a source of law. Its official role is to oversee uniform legal application in accordance with its mission of “preserving the values of the EU.” However, the court has been gradually increasing its power over national judiciaries. This encroachment began with the 1964 decision, Costa v Enel, when the court decided that European law has primacy over any conflicting national law.
This allows the CJEU to heavily influence policy in member states on issues like migration and security, among others. However, the extent of the court’s authority is a problem for member states that are grounded in a Romano-Germanic legal tradition. In this framework, law and sovereignty belongs exclusively to the people. As Montesquieu said, “the judge is the mouth of the law,” nothing more.
Conforming criminal code
First, criminal procedure is being targeted by the Court of Justice. As a result, throughout Europe, criminal law is conforming in member states. The push for uniformity may seem logical, but its effect on national sovereignty is destructive. A good example is the court’s 2020 decision which ruled that governments cannot compel phone operators to share their clients data, even for persons suspected of terrorism or serious crime.
This constant change of legal provisions has hurt many police investigations and makes future investigations more difficult. This could be easily dismissed as a delay in the implementation of unified European law, but it is a real issue. In France, crime-solving rates have been falling because of these rulings: in 2016, 70% of homicides were solved, in 2020, only 62%.
The Court of Justice has also concentrated its efforts on immigration policies all over Europe. As a result, being an illegal alien in the EU is no longer considered a crime, and because of this, the court refuses to engage in criminal proceedings. Many member states have complied with this decision.
To enforce this, the CJEU attacked EU members who have not conformed with this lenient framework. On April 2nd, 2020, the court ruled that Poland, Hungary, and the Czech Republic were violating the law by refusing to apply mandatory relocation following the 2015 migrant wave.
On May 14th, 2020, Hungary was condemned for keeping an illegal migrant inside a transit zone for four weeks while he waited for his asylum request to be examined (it was subsequently denied).
On December 17th, 2020, Hungary was condemned again by the court because Budapest decided that migrants from neighboring Serbia could only present their asylum request from transit zones.
‘European values‘
The main issue with this legal unification is that it follows a predetermined agenda. Officially, this agenda is marketed as the protection of ‘European values.’ The question is, what are these values and who decides them?
The Treaty of Rome in 1957 originally designated “peace and freedom” as European values. Over time, the list has grown. In 1992, the Maastricht Treaty enumerated “freedom, democracy, human rights, fundamental rights, and the rule of law.”
The 2007 Lisbon Treaty talks of “respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities. … in a society in which pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men prevail.”
In the meantime, the EU’s charter of fundamental rights was ratified, adding another 54 values, including the quality of the environment, social exclusion, solidarity between generations, free trade, and children’s rights. These values are supposed to be common to all member states, but the sentences against Hungary or Poland indicate that they are not universally accepted.
This polytheism of values has no hierarchy and constitutes a resource of justifications by which different European institutions can support whatever decisions they want.
In conclusion, what the EU promotes in terms of migration and security is an ever-growing defence of individual rights at the expense of the collective interest of European societies. The 2020 terrorist attack in Nice by a Tunisian migrant took the lives of three European citizens. Had Italy or France been able to arrest the terrorist for illegal entry, those citizens would still be alive. Under the justification of non-discrimination, illegal migrants, citizens suspected of crime, and upright Europeans are all considered the same.
That is not justice.
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