WEBVTT - What Happens When a Country Breaks EU Law? 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.200 --> 0:00:11.559 The European Union has been in a legal fight with 0:00:11.720 --> 0:00:14.880 renegades Poland and Hungary over respect for the rule of 0:00:14.960 --> 0:00:18.480 law and the independence of the judiciary. The two countries 0:00:18.520 --> 0:00:21.079 were singled out in an EU report this week that 0:00:21.200 --> 0:00:24.959 pointed to the widening gap between their populist regimes and 0:00:25.000 --> 0:00:29.400 the block's democratic standards. Poland Supreme Court is considering making 0:00:29.400 --> 0:00:33.000 a U turn and halting a controversial disciplinary regime for 0:00:33.120 --> 0:00:35.960 judges that would comply with the ruling by the EU's 0:00:36.040 --> 0:00:39.600 top tribunal, But the Prime Minister of Hungary is proposing 0:00:39.600 --> 0:00:43.640 a referendum to push back against EU pressure to change 0:00:43.640 --> 0:00:48.000 a Hungarian anti lgbt Q law that sparked a furious 0:00:48.040 --> 0:00:51.840 reaction in the Block. Will the EU's executive arms start 0:00:52.000 --> 0:00:56.760 using recently one sanctioning powers to freeze funding including COVID 0:00:56.840 --> 0:01:00.880 nineteen bailouts for the errant member states? Joining me is 0:01:00.960 --> 0:01:05.399 Ronan McCrae, Professor of Constitutional and European Law at University 0:01:05.480 --> 0:01:08.959 College London. So let's start with some basics. In the 0:01:09.040 --> 0:01:12.640 United States, we have federal law and state law. How 0:01:12.680 --> 0:01:16.880 does EU law work with the law of country members. 0:01:16.959 --> 0:01:19.600 In some ways, it's actually not that different from the 0:01:19.640 --> 0:01:24.400 situation in the US. So like in the US the preemption, 0:01:24.480 --> 0:01:28.280 when the EU legislates in a particular area, the member 0:01:28.360 --> 0:01:30.640 states lose their right to legislate in that area, and 0:01:30.720 --> 0:01:33.959 EU law takes precedents. So under EU laws there's a 0:01:33.959 --> 0:01:38.160 clash between national law and ELA. E law takes precedence, 0:01:39.120 --> 0:01:43.440 and EULO will also be enforced by domestic courts, so 0:01:43.560 --> 0:01:45.240 you don't have to go to the European Court for 0:01:45.280 --> 0:01:49.240 every case. In theory, your local court will enforce your 0:01:49.240 --> 0:01:52.400 EU law rights. In the United States, we have common 0:01:52.480 --> 0:01:55.840 law and then we have statutory law. Is EU law 0:01:55.960 --> 0:02:00.760 all statutory no, so the law it's really like a 0:02:00.840 --> 0:02:04.120 constitutional system. So there's the Treaty, which is the founding 0:02:04.160 --> 0:02:06.880 documents that's like the constitution that sets out the powers 0:02:06.880 --> 0:02:09.840 of the EU, but also has a lot of constitutional principles, 0:02:09.880 --> 0:02:13.919 mainly fundamental rights principles in it. And then there's also 0:02:14.000 --> 0:02:17.239 then the secondary legislation that's produced by the EU legislature, 0:02:17.320 --> 0:02:19.800 which is the States and European Parliament and the European 0:02:19.840 --> 0:02:24.799 Commission together produce legislation in various areas of law in 0:02:24.880 --> 0:02:29.880 which the EU has competence. So then if a country's law, 0:02:30.080 --> 0:02:34.760 let's say Italy, if Italy's laws conflict with EU laws, 0:02:34.840 --> 0:02:38.720 then Italy has to change their laws. Yes, there's two 0:02:38.760 --> 0:02:41.240 things that can happen. First, the Commission can take Italy 0:02:41.560 --> 0:02:44.560 to the European Court of Justice and get the declaration 0:02:44.680 --> 0:02:48.359 that they've violated their duties under EU law. And if 0:02:48.919 --> 0:02:51.639 Italy doesn't bring its law into line, they can then 0:02:51.800 --> 0:02:57.520 be subject to repeat unlimited fine from the court. The 0:02:57.639 --> 0:03:00.880 second way, and in ways the more important a is 0:03:00.919 --> 0:03:04.240 that an Italian individual can go to their local court, 0:03:04.320 --> 0:03:07.440 they have a case and insist that eulaways applied in 0:03:07.520 --> 0:03:10.040 that case. And the Court of Justice has for a 0:03:10.080 --> 0:03:13.040 really forty years, the Court of European Court of Justice, 0:03:13.080 --> 0:03:16.720 the Supreme Court has ruled that in the case where 0:03:16.720 --> 0:03:21.079 there's a conflict between national law and EU law, EU 0:03:21.160 --> 0:03:25.040 law must take precedence and in the individual local national 0:03:25.120 --> 0:03:27.680 judge must apply EU law to the case. That's what 0:03:27.800 --> 0:03:30.679 makes the law so different from other forms of international law. 0:03:30.919 --> 0:03:33.520 You don't have to go to the international court. It's 0:03:33.600 --> 0:03:38.040 directly enforceable in your local court. How many EU courts 0:03:38.120 --> 0:03:40.880 are there well, that's a good questions. So there are 0:03:40.880 --> 0:03:45.200 two main EU courts to the General Court, which deals 0:03:45.280 --> 0:03:48.880 with issues about kind of when you call antitrust law, 0:03:49.760 --> 0:03:52.600 bearious other areas, and then there it's decisions can be 0:03:52.600 --> 0:03:55.520 appealed to the European Court of Justice, which is the 0:03:55.760 --> 0:03:59.240 supreme court. But because the European Court of Justice has 0:03:59.320 --> 0:04:02.080 ruled that national courts have to enforce the law in 0:04:02.160 --> 0:04:05.680 cases before them, in theory, all of the courts of 0:04:05.760 --> 0:04:08.600 the Member States are also EU courts. And what happens 0:04:08.640 --> 0:04:12.040 is the Court of Justice says that any national court 0:04:12.200 --> 0:04:15.560 that has issue of EU law before it and doesn't 0:04:15.600 --> 0:04:17.880 know how to interpret you law in the case, they 0:04:17.880 --> 0:04:21.160 can stop the case, make a reference to the European 0:04:21.200 --> 0:04:24.200 Court ask how should I apply EU law in this case, 0:04:24.600 --> 0:04:26.160 and the court will give them the answer and then 0:04:26.160 --> 0:04:29.520 they'll apply it. So there isn't a separate system of 0:04:29.640 --> 0:04:33.359 federal and state courts like you have in the US, 0:04:33.520 --> 0:04:36.200 just all the Member states have their own legal systems. 0:04:36.279 --> 0:04:38.120 And then there's on top of it at the European 0:04:38.120 --> 0:04:42.279 Court of Justice, who answers all EU law queries, but 0:04:42.320 --> 0:04:44.799 which expect the Member of state courts then to apply 0:04:44.880 --> 0:04:48.760 its rulings. When is it that the courts enforce laws 0:04:48.800 --> 0:04:53.480 and when is it that the European Commission enforces laws? 0:04:53.520 --> 0:04:56.719 So the courts will enforce the law in a concrete 0:04:56.760 --> 0:04:58.520 case before it. So what happens is you know you 0:04:58.720 --> 0:05:01.360 might be fired from your of work and you think 0:05:01.360 --> 0:05:03.080 that there's a lot of the laws, a lot of 0:05:03.160 --> 0:05:05.919 competence in labor law. You may take the case to 0:05:05.960 --> 0:05:08.960 the court and insist that the law is applied in 0:05:09.000 --> 0:05:11.920 that case. What the European Commission can do is where 0:05:11.960 --> 0:05:14.599 there's no case just in period as a breach of 0:05:14.640 --> 0:05:17.360 the EU law, they can they can then take a complaint. 0:05:17.600 --> 0:05:19.520 So for the Commission to act, they don't need a 0:05:19.600 --> 0:05:23.120 concrete violation in an individual case, they can follow up 0:05:23.160 --> 0:05:26.280 any abstract one. But for national courts they would need 0:05:26.320 --> 0:05:28.839 an actual dispute in front of it. And the Court 0:05:28.839 --> 0:05:31.760 of Justice is rude, but they they won't rule on 0:05:31.839 --> 0:05:35.040 theoretical disputes, and national courts they have an actual dispute 0:05:35.040 --> 0:05:37.839 involving in the EU law issue before it before the 0:05:37.920 --> 0:05:40.640 national court can invoke EU law. So tell me what 0:05:40.720 --> 0:05:44.640 happened last year when the e use General Court ordered 0:05:44.640 --> 0:05:49.880 the annoyment of the thirteen billion euro tax order against Apple. 0:05:50.440 --> 0:05:53.799 Why did that happen? Well, what they found was because 0:05:53.800 --> 0:05:56.760 the EU has quite limited competence in matters of tax, 0:05:57.120 --> 0:05:59.520 but they do have a lot of power in areas 0:05:59.560 --> 0:06:02.679 could of what's called state aid, which is where states 0:06:02.720 --> 0:06:08.520 giving subsidies two companies, and the European Commission had argued 0:06:08.520 --> 0:06:13.360 that Irelen's favorable treatment of Apple in relation to tax 0:06:13.440 --> 0:06:16.359 matters was so favorable that it effects the amounted to 0:06:16.400 --> 0:06:19.799 a subsidy state subsidy. And so because EU look Bay 0:06:19.839 --> 0:06:25.159 prohibits state subsidies, the European Commission imposed that fine and says, 0:06:25.240 --> 0:06:27.400 you can't do this. Apple has to pay back the 0:06:27.720 --> 0:06:31.080 tax is amounts to a subsidy. But the general courts 0:06:31.120 --> 0:06:33.440 that actually, no, this is a matter of tax, not 0:06:33.520 --> 0:06:36.559 a matter of subsidy policy, and so they annulled the 0:06:36.600 --> 0:06:41.000 imposition of that thirteen billion. So tell me how Germany's 0:06:41.160 --> 0:06:45.680 Constitutional Court took the EU Court of Justice on in 0:06:46.720 --> 0:06:49.800 and what happened there. As part of the kind of 0:06:49.839 --> 0:06:56.479 economic crisis, the European Bank is not allowed to fund 0:06:57.360 --> 0:07:00.520 to give money to states to kind of fund their spending, 0:07:01.440 --> 0:07:04.839 but it is allowed fixed interest rates, and the European 0:07:04.880 --> 0:07:07.880 Bank Central Bank. During the kind of economic crisis the 0:07:08.000 --> 0:07:11.520 last ten years, the bank bank has decided that although 0:07:11.520 --> 0:07:16.239 they're allowed directly financed governments, they can buy unlimited amounts 0:07:16.240 --> 0:07:19.720 of state debt in order to ensure that the interest 0:07:19.840 --> 0:07:23.240 rate states are charged is not doesn't deviate much from 0:07:23.240 --> 0:07:26.040 the interest rates set by the European Central Bank, and 0:07:26.080 --> 0:07:30.720 the German court says this is disguised financing of the 0:07:30.760 --> 0:07:34.000 states by the European Central Bank and that that's something 0:07:34.040 --> 0:07:37.120 that the EU Bank does not the power to do so. 0:07:37.120 --> 0:07:41.040 When Drum politicians took this case, saying the European Central Bank, 0:07:41.400 --> 0:07:44.480 by funding member states in this way buying their debt, 0:07:45.120 --> 0:07:49.239 has gone beyond its powers. The German Constitutional Court after 0:07:49.320 --> 0:07:52.840 the European Court of Justice, does the European Central Bank 0:07:52.920 --> 0:07:55.600 have the power to do this under the EU treaties. 0:07:56.040 --> 0:07:58.920 The Court of Justice said yes it does and send 0:07:59.000 --> 0:08:01.760 the case back to the Constitutional Court. But the German 0:08:01.800 --> 0:08:06.280 Constitutional Court said, actually, we don't think you've exercised a 0:08:06.440 --> 0:08:09.480 strict enough review of the limits of the powers of 0:08:09.560 --> 0:08:13.840 central bank. We disagree. Therefore, the German Central Bank, which 0:08:13.920 --> 0:08:16.600 is part of the European central bank system, and provide 0:08:16.640 --> 0:08:20.040 some of the money cannot participate in this project. Now, 0:08:20.080 --> 0:08:22.040 the issue with that is it was the first time 0:08:22.320 --> 0:08:25.880 that a national court had refused to accept the ruling 0:08:26.120 --> 0:08:28.560 of the European Court of Justice on what were the 0:08:28.640 --> 0:08:31.960 limits of the powers of the EU institution. European Court 0:08:32.040 --> 0:08:34.760 Justice has always said, if we have twenty seven states, 0:08:35.080 --> 0:08:38.559 we have to have one court, European put a justice 0:08:38.679 --> 0:08:41.600 which provides a definitive answer to what are the powers 0:08:41.640 --> 0:08:44.920 of the institutions. And here the German court was refusing 0:08:44.960 --> 0:08:47.840 to accept that, and that went against fifty years of 0:08:47.960 --> 0:08:50.560 e U k S law, where they've been saying any 0:08:50.600 --> 0:08:53.080 conflict in national law and EU law is resolved in 0:08:53.120 --> 0:08:55.640 favor of you law. This is a problem in itself 0:08:55.720 --> 0:08:59.199 because they were worried about the European Central Banks bomb 0:08:59.240 --> 0:09:02.559 buying program, but they've they've kind of faded recently. But 0:09:02.640 --> 0:09:07.880 it's a bigger structural issue because if national constitutional courts 0:09:08.000 --> 0:09:11.640 start refusing to accept the primacy of EU law, then 0:09:11.679 --> 0:09:15.640 the whole system, the illegal system, begins to fall apart. 0:09:15.920 --> 0:09:19.080 And that's particularly important because the EU is in the 0:09:19.200 --> 0:09:23.720 midst of and very heated clashes with two members states 0:09:23.800 --> 0:09:27.559 Hungry and Poland over the independence of their courts tell 0:09:27.640 --> 0:09:31.640 us about the conflicts between the EU and Hungary and Poland. 0:09:32.520 --> 0:09:35.560 So the Hungarian government and the Polish government have an 0:09:35.600 --> 0:09:39.800 act that a series of performs, the substance of which 0:09:39.880 --> 0:09:42.959 is to undermine the independence of the judiciary, and the 0:09:42.960 --> 0:09:47.400 European Court of Justice has issued several rulings saying because 0:09:47.640 --> 0:09:51.440 EU law requires national judges to implement the EU law, 0:09:51.840 --> 0:09:54.960 the EU requires the judges are independent, so they're able 0:09:55.160 --> 0:09:58.720 to enforce the EU law against the government. Therefore, your 0:09:58.800 --> 0:10:01.839 measures which under find the independence of the courts in 0:10:02.200 --> 0:10:04.920 Hungary in Poland violated U law and you have to 0:10:05.160 --> 0:10:07.720 you have to disapply them. Now, this means when the 0:10:07.840 --> 0:10:10.840 German Constitutional Court is kind of reasonably why you respected 0:10:10.840 --> 0:10:13.360 in Europe, ruled that it was not accepting a Court 0:10:13.400 --> 0:10:16.480 of Justice ruling. The Polish and Hungarian governments were delighted 0:10:16.520 --> 0:10:19.000 because they were like brilliant. Our courts now will say 0:10:19.240 --> 0:10:21.360 they don't have to accept Court of Justice rulings in 0:10:21.400 --> 0:10:25.480 relation toudicial independence, which is what happens. Last week. The 0:10:25.520 --> 0:10:28.920 Polish Supreme Court or Constitutional Court has rules that it 0:10:28.960 --> 0:10:32.520 does not accept the European Court of Justice ruling which 0:10:32.640 --> 0:10:35.880 said that the Disciplinary Chamber they have for judges, where 0:10:35.920 --> 0:10:40.080 government appointees can discipline judges for ruling against it. European 0:10:40.080 --> 0:10:43.000 Court of Justice has said that disciplinary chamber is against 0:10:43.040 --> 0:10:45.360 the EU law and must be shut down, and Polish 0:10:45.400 --> 0:10:48.880 Constitutional Court has now said, well, just like the Germans, 0:10:49.040 --> 0:10:52.559 we retained the right not to accept Court of Justice 0:10:52.760 --> 0:10:55.120 rulings if we think they go against our constitution and 0:10:55.160 --> 0:11:00.199 therefore we don't accept this ruling. So this is a big, big, 0:11:00.280 --> 0:11:03.439 kind of slow burned threat to the European Court adjustice 0:11:03.600 --> 0:11:06.880 because over the years there's been some gray areas about 0:11:06.880 --> 0:11:10.000 whether their national courts accepted that EULA always took primacy, 0:11:10.040 --> 0:11:13.520 but by and large they have accepted the primacy of 0:11:13.559 --> 0:11:17.280 the law, and without the primacy of you law. If 0:11:17.400 --> 0:11:20.880 national courts are not going to follow you law and 0:11:20.920 --> 0:11:23.360 are going to disapply it when they feel like it, 0:11:23.520 --> 0:11:26.440 or if they think they're sufficiently important reasons to do so, 0:11:26.880 --> 0:11:29.880 then the legal unity of the EU is really undermined. 0:11:30.559 --> 0:11:32.880 The EU of two things. It's a sit on political 0:11:32.880 --> 0:11:37.280 cooperation between member states and the system of shared legal rules. 0:11:37.840 --> 0:11:42.600 Once the shared legal rules go, if national courts stopped 0:11:42.679 --> 0:11:46.440 enforcing them, then the EU retreats doing something much more 0:11:46.480 --> 0:11:50.560 like a classic international organization rather than what it is now, 0:11:50.600 --> 0:11:53.800 which is something which is halfway between a state and 0:11:53.880 --> 0:11:57.280 an international organization. So where does the situation now with 0:11:57.480 --> 0:12:02.800 the German Constitution Court. Well, the German Constitutional Court gave 0:12:02.840 --> 0:12:06.240 itself a kind of way out. It said that, well, 0:12:06.280 --> 0:12:08.839 we don't accept that the European Court of Justice has 0:12:08.880 --> 0:12:12.400 been strict enough than policing the boundaries of the powers 0:12:12.400 --> 0:12:16.240 of European Central Bank. But if the German Bank can 0:12:16.280 --> 0:12:19.800 provide us with various factual information about how this bond 0:12:19.840 --> 0:12:23.200 buying program works, then we might be happy to accept 0:12:23.240 --> 0:12:25.840 that it's within the powers of the European Central Bank. 0:12:26.200 --> 0:12:29.800 And the europ German Central Bank did issue various clarifications 0:12:29.800 --> 0:12:32.600 and gave the courts and factor information and the Court 0:12:32.840 --> 0:12:36.760 has said okay, well now Germany can participate. So on 0:12:36.920 --> 0:12:39.600 the fact the kind of danger to the bond buying 0:12:39.640 --> 0:12:43.920 program has disappeared. But that level of principles, the damage 0:12:44.000 --> 0:12:47.960 is done because now the threat to the authority of 0:12:48.040 --> 0:12:50.760 the European Court of Justice is established when a well 0:12:50.800 --> 0:12:54.880 respected founding Member States Supreme Court goes against the Court 0:12:54.920 --> 0:12:58.400 of Justice. Because remember there's no national Guard in the EU. 0:12:58.520 --> 0:13:00.920 You know when the European Court of just just rules 0:13:00.920 --> 0:13:03.400 while their case is clear that the legal obligation to 0:13:03.520 --> 0:13:06.440 enforce their ruling, they have no way of forcing a 0:13:06.520 --> 0:13:10.360 national court that doesn't want to enforce a ruling to 0:13:10.360 --> 0:13:12.840 do so. The only thing that can happen is they 0:13:12.840 --> 0:13:15.840 can impose financial sanctions on the member states, and they 0:13:15.880 --> 0:13:18.960 are now. The European Commission this week has said that 0:13:19.000 --> 0:13:21.840 they're going to go for financial sanctions against Poland. But 0:13:21.960 --> 0:13:25.200 there is no national guard. There's no way that the 0:13:25.240 --> 0:13:28.880 European Court of Justice can enforce compliance with rulings. It's 0:13:28.920 --> 0:13:32.480 dependent on the cooperation of national courts. So then if 0:13:32.520 --> 0:13:35.319 Poland or Hungary says we're not going to pay the sanctions, 0:13:35.840 --> 0:13:37.880 nothing can be done. Can they be kicked out of 0:13:37.880 --> 0:13:41.800 the EU? No? Well, so they can. This natural sanctions 0:13:41.840 --> 0:13:44.319 are real, and not least because Pope. Both Poland and 0:13:44.400 --> 0:13:48.120 Hungary receive very significant substitutes in the EU. So the 0:13:48.160 --> 0:13:50.839 EU is lucky and that the two countries that are 0:13:50.920 --> 0:13:53.719 kind of creating the most trouble at the moment are 0:13:53.720 --> 0:13:56.600 both big net beneficiaries of EU spending, so that they 0:13:56.600 --> 0:13:59.079 will have to pay the fine. There is new EU 0:13:59.200 --> 0:14:03.520 legislation says when judicial independence is not respected, if that 0:14:03.559 --> 0:14:06.200 threatens the integrity of the EU budget, you can cut funding. 0:14:06.240 --> 0:14:09.080 So they may lose funding, but there is no way 0:14:09.120 --> 0:14:11.640 to expel a member states from the European Union. In fact, 0:14:11.640 --> 0:14:14.360 in that regards to the unhelpful case came up during 0:14:14.360 --> 0:14:18.520 the Brexit process where some pro EU British politicians took 0:14:18.520 --> 0:14:21.880 a case to the European Court of Justice asking if 0:14:21.920 --> 0:14:25.920 Britain could withdraw its notification that it wants to leave 0:14:26.000 --> 0:14:29.560 the EU, and in a wider ruling in passing, the 0:14:29.600 --> 0:14:32.200 court said, well, there's no there's no mechanism for kicking 0:14:32.200 --> 0:14:35.240 a member state out of the European Union against its will, 0:14:35.560 --> 0:14:37.400 so you can't kick them out of the European Union. 0:14:37.800 --> 0:14:40.240 The one thing that can happen is, I mean the 0:14:40.240 --> 0:14:43.840 EU because it legislates in so many areas now labor, loan, 0:14:43.960 --> 0:14:47.480 by mental law, agriculture, economic policy. You know, there's an 0:14:47.480 --> 0:14:52.080 awful lot of ways in which member states can make 0:14:52.240 --> 0:14:55.680 other member states lives uncomfortable. So over the next few 0:14:55.680 --> 0:14:57.680 months will be hundreds of issues that the E will 0:14:57.720 --> 0:15:00.560 be deciding on. If put in the home, we really 0:15:00.600 --> 0:15:03.280 look like they're kind of in danger of bringing down 0:15:03.280 --> 0:15:06.760 the whole system. The other member states can extract long 0:15:07.000 --> 0:15:11.280 low revenge by blocking every single initiative that's important to them. 0:15:11.320 --> 0:15:14.800 So that is a possibility. It's not a very dramatic one, 0:15:15.360 --> 0:15:18.400 but member states are aware that there is long term 0:15:18.760 --> 0:15:21.360 cost for going against but the member states. And the 0:15:21.360 --> 0:15:24.200 one thing we learned from the Brexit process was how 0:15:24.280 --> 0:15:27.600 much the Union means to the political elites in Europe. 0:15:27.640 --> 0:15:29.640 In fact, we saw this again the financial crisis to 0:15:29.680 --> 0:15:32.280 there are a lot of commentators in the US like 0:15:32.320 --> 0:15:35.120 Paul Krugman and Just Stiglets who are wondering why the 0:15:35.120 --> 0:15:37.720 Eurozone didn't collapse. You know, the order doesn't really make 0:15:37.800 --> 0:15:41.240 sense to have a single currency without a single economic policy. 0:15:41.480 --> 0:15:45.000 But what they underestimated is the political commitment of EU 0:15:45.200 --> 0:15:48.160 leaders to maintaining the union. They would do whatever it 0:15:48.240 --> 0:15:50.960 takes to keep it together. And in the Brexit process, 0:15:51.000 --> 0:15:53.680 despite all the fights between different member states, when one 0:15:53.760 --> 0:15:57.680 member state left, the other twenty seven member states formed 0:15:57.760 --> 0:16:01.280 kind of a block and negotiating there was no deviation. 0:16:01.320 --> 0:16:03.880 There was no picking one member state off by the British. 0:16:04.240 --> 0:16:07.640 So you member state governments are very committed to protecting 0:16:07.640 --> 0:16:10.520 the union. There will be a high political price for 0:16:10.560 --> 0:16:13.600 Poland and Hungry to pay if they're seen is threatening it, 0:16:13.640 --> 0:16:16.640 but there is no way of expelling them even if 0:16:16.680 --> 0:16:19.360 they reach YOU law. What may happen if courts may 0:16:19.400 --> 0:16:23.600 start national courts may start saying that they don't recognize 0:16:23.680 --> 0:16:26.320 Polish and Hungarian decisions. So a lot of you law 0:16:26.400 --> 0:16:29.080 is the duty to recognize the judgments and decisions of 0:16:29.120 --> 0:16:32.120 other member states. And what may happen is over time 0:16:32.160 --> 0:16:35.000 other courts may start saying, well, actually, we don't think 0:16:35.000 --> 0:16:37.640 your courts are independents, so we won't give you that benefit. 0:16:37.920 --> 0:16:40.680 It's already in the case of Ireland years ago, where 0:16:40.680 --> 0:16:43.920 a Polish prisoner EU law makes the transfer prisoners between 0:16:43.920 --> 0:16:46.840 states much easier. A Polish prisoner was meant to be 0:16:46.880 --> 0:16:50.040 sent for trial in Poland, the Irish court said, we're 0:16:50.040 --> 0:16:52.720 not sure we can send you actually, because we don't 0:16:52.720 --> 0:16:55.560 think the Polish courts are independent. And tell us a 0:16:55.640 --> 0:17:00.640 little about the conflict with Hungary and it's LGBT law. 0:17:01.400 --> 0:17:04.200 The Hungarian government has really for the last ten years 0:17:04.200 --> 0:17:08.760 being undermining judicial independence. They've placed the wife of a 0:17:08.880 --> 0:17:12.280 rooting party politician as head of the judiciary. They gave 0:17:12.400 --> 0:17:15.600 her the power to promote and fire judges allocate cases. 0:17:15.600 --> 0:17:18.919 I think variously they've suddenly dropped the retirement age of 0:17:19.000 --> 0:17:20.960 judges by ten years to get rid of once they 0:17:20.960 --> 0:17:24.359 didn't like. So they've been attacking the independence of judiciary 0:17:24.640 --> 0:17:26.840 in Hungary for a while. But there's also been a 0:17:26.840 --> 0:17:32.280 cultural clash, and recently they passed the law that would 0:17:32.280 --> 0:17:36.280 be abandoned the provision of any information about gay more 0:17:36.359 --> 0:17:39.800 transgender people to people under eighteen and links it by 0:17:39.840 --> 0:17:42.840 implication to be the fedia that hast gone down very 0:17:42.920 --> 0:17:48.639 poorly in Western European states and in the Baltic states. 0:17:48.680 --> 0:17:50.240 So there's a real divide on this issue, and the 0:17:50.240 --> 0:17:53.320 European Commission is trying to sue Hungry for that. The 0:17:53.400 --> 0:17:56.560 difficulty they face is, you know, the European Union only 0:17:56.600 --> 0:17:59.879 has competence in certain areas, and that kind of area 0:18:00.119 --> 0:18:04.760 is something that the EU have fairly limited competence in 0:18:04.760 --> 0:18:09.600 relation to. But they're trying to think creatively about areas 0:18:09.600 --> 0:18:12.640 which might be touched by this law, like some elements 0:18:12.640 --> 0:18:14.800 of broadcasting law or things like that, where the Union 0:18:14.840 --> 0:18:17.080 does have competence and there they're going to try and 0:18:17.119 --> 0:18:19.960 take a case on that basis. So interesting. Thanks for 0:18:20.000 --> 0:18:23.240 being on Bloomberg Law. Ronan. That's Ronan McCrae, a professor 0:18:23.280 --> 0:18:29.400 of Constitutional and European law at University College London. The 0:18:29.400 --> 0:18:33.359 pandemics test of telework for office workers has reached an 0:18:33.400 --> 0:18:37.080 inflection point as returned to work mandates are put in 0:18:37.160 --> 0:18:41.160 place and legal battles loom over employee request to stay 0:18:41.160 --> 0:18:44.600 at home. Joining me is Aaron mulvaney, Senior legal reporter 0:18:44.640 --> 0:18:48.040 at Bloomberg Law. Are a lot of companies mandating that 0:18:48.280 --> 0:18:51.639 workers returned to the office or is there a split 0:18:51.680 --> 0:18:56.720 among major companies? There absolutely are a lot of companies 0:18:56.800 --> 0:19:00.760 that do you want a returned to the office UM 0:19:00.840 --> 0:19:05.040 for their workforce? UM, while they're being cautious, there's been 0:19:05.080 --> 0:19:07.239 a there have been CEOs that have come out like 0:19:07.400 --> 0:19:12.679 JP Morgan or UM Microsoft CEOs that have said office 0:19:12.680 --> 0:19:18.240 culture is very important to how they operate and UM. 0:19:18.320 --> 0:19:20.880 Then there have been other companies that have been more 0:19:20.880 --> 0:19:24.960 flexible and our suggesting permit hybrid options. And there are 0:19:24.960 --> 0:19:28.320 really big names in that group to like Twitter, Facebook, 0:19:28.840 --> 0:19:32.840 City Group, UM have considered kind of more flexible options 0:19:32.840 --> 0:19:36.800 as well. So there's definitely a divide among even major 0:19:36.920 --> 0:19:40.120 corporations of how they're responding to kind of this new 0:19:40.160 --> 0:19:44.240 normal which workers have to go back to work, have 0:19:44.280 --> 0:19:48.840 no excuse, and which workers can make a legal case 0:19:50.240 --> 0:19:52.440 right and and to be clear, since you brought this up, 0:19:52.840 --> 0:19:55.840 we're of course talking about office workers who were kind 0:19:55.880 --> 0:19:59.320 of teleworking during the whole the entire pandemic. And the 0:19:59.359 --> 0:20:01.399 reason that's been important is because of course there's a 0:20:01.400 --> 0:20:04.440 lot of workers out there that you know, we're essential 0:20:04.480 --> 0:20:06.280 and needed to go in and there was a business 0:20:06.320 --> 0:20:11.399 necessity to being actually in person, and so there is 0:20:11.440 --> 0:20:13.600 a case to be made. So by and large, an 0:20:13.600 --> 0:20:17.119 employer can fire anyone who doesn't follow a return to 0:20:17.200 --> 0:20:22.159 office handate. Most private employers have that right, um. But 0:20:23.560 --> 0:20:27.120 there are exceptions to that because there are protections under 0:20:27.119 --> 0:20:29.840 the American Disabilities Act, and if you that's probably the 0:20:29.880 --> 0:20:34.320 most powerful one. Um. If there is a legitimate reason 0:20:34.480 --> 0:20:37.440 and a concern that a person with a disability can't 0:20:37.440 --> 0:20:41.080 return to an office, there could potentially be an accommodation 0:20:41.160 --> 0:20:43.520 that's made, and there's kind of a balancing test that 0:20:43.560 --> 0:20:46.080 comes into play if that makes it up to the court. 0:20:46.680 --> 0:20:50.239 The first thing that happens is the worker says, I 0:20:50.320 --> 0:20:52.639 don't want to go back to work because or I 0:20:52.680 --> 0:20:55.000 can't go back to work because and is there an 0:20:55.040 --> 0:21:00.200 internal process first? Absolutely, So the way it would work 0:21:00.320 --> 0:21:04.320 is that if there's a mandate to return to the office, 0:21:04.400 --> 0:21:06.720 there could be and really this is for any kind 0:21:06.720 --> 0:21:10.440 of accommodation, like even if you want a more ergonomic desk, 0:21:10.560 --> 0:21:15.600 like the entire interactive process happened UM first with your 0:21:15.640 --> 0:21:18.840 company doesn't always go immediately to the court obviously, but 0:21:19.240 --> 0:21:21.080 so this would be a pretty big request or request 0:21:21.119 --> 0:21:24.879 for telework UM when everyone else is going back. UM 0:21:25.080 --> 0:21:27.600 would be something that you first from to your company 0:21:27.640 --> 0:21:29.800 and then they would go through an interactive process to 0:21:29.840 --> 0:21:32.240 see if that's an accommodation they can make and if 0:21:32.240 --> 0:21:35.000 that would be appropriate UM and not be an undue 0:21:35.040 --> 0:21:38.560 burden on their business operations. What kind of workers have 0:21:38.760 --> 0:21:43.360 brought lawsuits? A lot of these cases that do rise 0:21:43.400 --> 0:21:45.800 to the level of courts. Of course that you know 0:21:45.840 --> 0:21:47.840 a little early in the process, but we are already 0:21:47.840 --> 0:21:52.240 seeing lawsuits in charges filed UM arguing that the company 0:21:52.320 --> 0:21:56.560 should have granted a telework request. There are different categories 0:21:56.600 --> 0:21:59.959 of them. You know. Initially when there were kind of 0:22:00.000 --> 0:22:03.080 mandates to return to the office, some people were concerned 0:22:03.119 --> 0:22:06.879 with the immediate if they had UM, say asthma or 0:22:07.080 --> 0:22:10.560 a disease, that would made them more AMUNO compromised and 0:22:10.640 --> 0:22:15.680 more vulnerable to the actual coronavirus, you know, fearing going 0:22:15.680 --> 0:22:18.399 back while the virus is still very active and raging 0:22:18.400 --> 0:22:22.919 and before vaccines were widely available. UM. And then there's 0:22:22.960 --> 0:22:28.679 there's also the types of UM lawsuits were where people 0:22:28.720 --> 0:22:31.320 say that you know, the pandemic exacerbated their mental health 0:22:31.800 --> 0:22:34.720 and going into an office would increase the anxiety and 0:22:34.880 --> 0:22:38.119 that capacity. UM. There are absolutely those cases as well. 0:22:38.480 --> 0:22:43.320 And there's the other type of case where UM, somebody 0:22:43.400 --> 0:22:45.520 might have difficulty coming to the office because of a 0:22:45.560 --> 0:22:50.200 mobility issue or the like, and that would be something 0:22:50.240 --> 0:22:52.840 they could request and say it would just be I 0:22:52.840 --> 0:22:56.359 can work just as well from home because I've proven, 0:22:56.720 --> 0:22:58.840 you know, our whole office proven proved that we can, 0:22:59.480 --> 0:23:01.439 and trying to make that request so there, and that 0:23:01.440 --> 0:23:06.000 would be something that might happen more in perpecuity potentially, UM. 0:23:06.040 --> 0:23:09.760 I take it the request due to physical disability is 0:23:09.840 --> 0:23:14.000