15. If 27 national constitutional courts could judge the scope of EU's competences in their countries, then EU law would mean different things in different countries - & so would mean nothing. States could pick & choose which EU laws to apply by amending constitutions

16. The @BVerfG's claim that it can declare EU acts it deems ultra vires to be inapplicable in Germany is nothing less than a "nullification doctrine" of the sort we've seen in the US from pre-Civil war days (Calhoun) to quite recently (Roy Moore)

17. Some might protest saying, "But the EU isn't a federal state, so ECJ shouldn't have final say". But again, if national courts can nullify EU acts & ECJ decisions, then the EU legal order - the only thing that holds the EU together - will collapse.

18. Note: this doesn't mean states lose sovereignty or that nat'l courts can't protect their constitutions. The issue is the remedy they apply: if they they think the ECJ has overstepped its bounds, they can't simply invalidate its rulings, but they can do other things....

19. Instead, they can a)tell their gov it must work through EU political process to change the offending law, b) amend their constitution, or c) tell gov it must leave EU if things don't change. If you think leaving is impossible, ask the UK. (It is a stupid idea, but possible)

20. Finally, we must consider the current context & how the EU's pet autocrats in Hungary & Poland will make use of the @BVerfG ruling. I wrote about this most recently with @ProfPech: https://www.cambridge.org/core/journals/cambridge-yearbook-of-european-legal-studies/article/uses-and-abuses-of-constitutional-pluralism-undermining-the-rule-of-law-in-the-name-of-constitutional-identity-in-hungary-and-poland/3DCC6C466E4E3B97448337C0F701CA56

21. The title of the working paper version of that article w/ @reconnectEU captures the problem best "Why autocrats love constitutional identity and constitutional pluralism: Lessons from Hungary and Poland" https://reconnect-europe.eu/wp-content/uploads/2018/10/RECONNECT-WorkingPaper2-Kelemen-Pech-LP-KO.pdf

22. In short, the autocracies of HU & PL & their captured courts are seizing on ideas promoted by the @BVerfG & pluralists to justify their defiance of EU law & the ECJ.

23. Of course, defenders of the German BVerfG & of constitutional pluralism are horrified to see how their ideas abused by regimes intent on destroying rule of law, but they tend to say that the fact an idea can be abused doesn't discredit the idea.

24. To me that's a bit like a "guns don't kill people, people do" argument. True to point, but obscures fact that the product (here an idea) is inherently dangerous & prone to abuse. @ProfPech & I warned captured courts in HU & PL would abuse these ideas, & now they are doing so

25. Predictably, the illegally appointed judges on Poland's captured 'Constitutional Tribunal' have rushed to invoke the @BVerfG's ruling to claim they can overrule any ECJ rulings concerning the Polish government's assault on judicial independence https://twitter.com/ProfPech/status/1259499120064106504?s=20

26. What's good for the goose is good for the gander: if the esteemed judges of the @BVerfG can override the ECJ, then so will captured courts in autocratic states like HU & PL. And that, as my friend @Erik_Jones_SAIS often says, "is what European disintegration looks like"

27. To read more, I particularly recommend recent analyses of the German Court's ruling by scholars like @DanielSarmiento @prof_mayer @KatharinaPistor & @Erik_Jones_SAIS. Many good media takes too, ie https://www.ft.com/content/79484c01-b66b-4f81-bdc6-fd4def940821 & https://twitter.com/VALERIEin140/status/1259473281620553728?s=20

28. To some, this may seem to some like an obscure legal battle, but particularly given the rise of autocratic member govs, it is really an existential battle for the EU. The EU is a union built on law. If its legal order fragments like this, it is in grave danger. END