This is one of the major points of the agreements of the New People’s Ecological and Solidarity Union (Nupes) in view of the legislative elections. The text signed between La France insoumise and Europe Ecologie-Les Verts, on the night of Sunday May 1 to Monday May 2, provides for “disobeying certain European rules”, “in particular economic and budgetary”in order to be “able to apply [leur] program”. A “disobedience” which also appears in the agreement signed on Tuesday with the Communist Party. The text published on Wednesday by the socialists and the “rebellious” pursues the same objectives, but is intended to be more measured: “We are talking about disobeying for some, of derogating temporarily for others.”
The agreements of the Nupes evoke in particular thea possibility of derogating from the rules of the Stability and Growth Pact, from competition law, as well as from “productivist and neoliberal orientations” of the common agricultural policy. They ensure, however, that any escalation towards an exit from the European Union is ruled out. But can an EU member country really decide to ignore European rules? Franceinfo asked the question to specialists in Community law.
The 27 Member States of the European Union are required to respect and implement Community standards. “The principle is that of primacy of European law over national law”, explains Florence Chaltiel-Terral, professor of public law. It concerns both primary law (treaties, protocols) and secondary law (regulations, directives and decisions). Lhe primacy of European law has been reiterated several times by the Court of Justice of the European Union since a judgment in 1964, and by the Member States in a declaration in 2007as the legal media Les Highlighters reminds us.
To free oneself unilaterally from European law would therefore not be without consequence. “It happens that the States do not respect the rules of the European Union, but they then expose themselves to sanctions”, recalls Tania Racho, doctor of European law and member of the Highlighters collective. When a country breaks the rules, voluntarily or not, the European Commission can initiate an infringement procedure. These procedures are listed every month on the Commission’s website (in English).
“France has already been sued several times for failure to comply.”
Tania Racho, Doctor of European Lawat franceinfo
Initially, the Commission discusses and negotiates with the country concerned so that it changes its behaviour. At the end of this phase, if still fails to meet its obligations, the Commission may bring an action for failure to fulfill obligations before the Court of Justice of the European Union (CJEU), which may impose a sentence. Financial sanctions can be decided in the event of non-compliance with the judgment of the Court.
In 2005, France was ordered to pay a fixed fine of 20 million euros for non-compliance with fishing standards. In this case, the CJEU also confirmed in 2011 the condemnation of Paris to pay an additional fine of 57 million euros. More recently, the Court condemned France in October 2019 for exceeding “systematic and persistent” air quality standards, requiring it to “comply with the judgment as soon as possible”. The Commission again seized the CJEU on this case in 2020.
Other member countries have also suffered heavy financial sanctions. The CJEU, for example, condemned Poland in 2021 to pay a fine of 500,000 euros per day as long as one of its coal mines, deemed harmful to the environment, remains active. The same year, the payment of a fine of one million euros per day was demanded in Warsaw about its controversial reform of the judicial system. This fine now amounts to “more than 160 million euros”, said a European commissioner on Tuesday. Faced with the Polish government’s refusal to pay, a first installment of 69 million euros was deducted from its European funds.
Moreover, in the event of non-compliance with the Stability and Growth Pact, which notably requires countries in the euro zone to maintain their public deficit below 3% of GDP, “there are specific excessive deficit procedures”adds Eric Maurice, director of the office in Brussels of the Robert Schuman Foundation. However, the European Commission applies “very flexibly” these devices, notes the public life site, which adds that “France exited this procedure in May 2018 after nine years without sanctions”.
Beyond the risk of financial sanctions, “a country which refuses to apply European law cannot be excluded from the European Union”, notes Pierre-Yves Monjal, professor of public law at the University of Tours. And for good reason, no procedure for excluding a Member State is provided for by the European treaties. The heaviest sanction, defined in Article 7 of the Treaty on European Union, is the suspension of a Member State’s right to vote in the European Council.
However, this article can only be activated in the event of a breach of the values mentioned in article 2 of the EU Treaty (human dignity, freedom, democracy, equality, rule of law and human rights). It is moreover on this basis that Article 7 was triggered against Poland and Hungary. This procedure therefore does not concern breaches of the rules mentioned in the Nupes agreements, confirm the experts interviewed by franceinfo.
The fact remains that if France decided openly to free itself from European rules in economic and budgetary matters, it “would risk being marginalized” on the European scene, adds Florence Chaltiel-Terral.
“The country would be exposed to a political cost which is the breach of trust with partners.”
Eric Maurice, member of the Robert-Schuman Foundationat franceinfo
This decision could lead “reactions from other States, which would take advantage of it for themselves to evade European law or, worse, to take retaliatory measures against France”advance The Highlighters.
Above all, specialists point out that “disobedience” is an avoidable path, since nothing prevents a country from negotiating with the European Union to benefit from an exception. In their joint press release, La France insoumise and the Greens cite in particular Spain, which allegedly circumvented European rules “on energy prices”. In reality, Madrid “has joined forces with Portugal to negotiate measures to limit gas prices with the European Commission” which were granted at the end of April, details Araceli Turmo, lecturer in European law at the University of Nantes. Spain has thus not unilaterally freed itself from the rules, but has signed a political agreement with the EU. “There is therefore a certain flexibility in the system”comments the specialist.
“European law itself provides for relaxations of the treaties in the event of exceptional circumstances.”
Pierre-Yves Monjal, professor of public lawat franceinfo
For example, state aid granted to companies is in principle “incompatible” with the right to competition within the internal market. But derogations exist and the rules were relaxed during the health crisis. Similarly, since 2020, the budgetary objectives of the Stability and Growth Pact have been suspended to allow for economic recovery.
Finally, more broadly, a Member State may not participate in a particular area of Community cooperation. But these exceptions, called “opting-out” (or “opt-out”), must be negotiated upstream, when the treaties are revised. This is how Denmark, cited as an example by Jean-Luc Mélenchon on Saturday on France 2benefited from exemptions on the euro or on defense issues. “We cannot therefore ratify a treaty and, overnight, decide to no longer respect it”slice Eric Maurice.