Also at the EU level, the rule of law needs to be strengthened  

Copyright: "Lady Justice isn't messing around" by quinn.anya is licensed under CC BY-SA 2.0

By Marc De Vos, Professor of law and Dean at the Macquarie School of Law (Sydney, Australia),  previously a Professor of law at Ghent University, Belgium

As the European holiday season winds down, amid Covid and severe weather, the thunderclouds of a storm that has been foreseeable for nearly 60 years are gathering over the European Union. The European Commission has provided Poland with an ultimatum over the country’s controversial disciplinary chamber for judges, which the Polish government now seems to be willing to grudgingly dismantle. Earlier, the European Court of Justice has ruled the body is a violation of EU law. In response, the Polish Constitutional Court is rejecting the authority of both the ECJ and EU law.

Politically speaking, this case is an example of the gradual decline towards autocracy in Poland, a development of symbolic value for Eastern Europe where similar problems can be witnessed in Hungary and Bulgaria. The European Commission is obliged to act and is able to threaten to block EU recovery funds. Legally, however, the only thing the Commission can do is to litigate at the same top EU Court which the Polish regime, supported by its politically controlled Constitutional Court, is now rejecting.  

The Polish palace revolution against EU law and the European institutions is touching a raw nerve of the EU construction. The Union is the end result of a collection of treaties concluded by European countries in successive waves since the 1950s. With each treaty, the contracting countries have ceded part of their national sovereignty to Brussels. Gradually, the Union itself acquired the building blocks of a democratic rule of law state: an elected Parliament, an appointed Commission as the de facto government and a European court in Luxembourg. The Europe Union is a proto-federal state.

One thing is missing, however: the anchoring of a clear choice in the constitutional treaties of the Union about the hierarchical relationship between the EU and its member states. At the start of European unification process, no political consensus existed on this critical matter, perhaps not even an understanding of its necessity. The EU’s top Court in Luxembourg did exist, however. As early as 1964, the Court ruled that European law must automatically take precedence over national law. Moreover, the Court itself gave itself exclusive jurisdiction to interpret European law. For any dispute on EU law, national courts are obliged to refer to Luxembourg and respect its verdict. These principles of primacy and exclusivity serve as the bedrock upon which the EU’s whole architecture rests.

It is a hallmark of any federal state that its federal Constitution regulate the relationship between the federal state and the federated states as well as provide a mechanism to settle conflicts between the various state policy levels. In the US and in Germany, the federal level is supreme. In Belgium, there is equality, with a Constitutional Court as the arbiter. For the European Union, no such arrangement was ever foreseen. Consequently, the erstwhile sovereign EU’s member states never had to amend their respective Constitutions. Their national judges have simply always spontaneously respected the ECJ’s edict of primacy of EU law, as well as the ECJ’s exclusive jurisdiction over its interpretation. This kind of voluntary cooperation among the top courts of EU member states and the ECJ makes of breaks the European Union.

Cracks in the collective discipline among national top courts

There are now cracks emerging in the collective discipline among the courts of the 27 member countries. Both in France and Germany, top courts have questioned the functioning of the European Court of Justice. This was already unseen. The Polish top court has now gone one step further in contesting the legal force of EU law altogether.

And then there is Brexit. One key reason for the United Kingdom’s departure was a deep-seated concern about uncontrolled and uncontrollable European jurisprudence which, on balance, has been sucking away more and more national sovereignty over the decades.

We are thus experiencing constitutional growing pains in the process of European unification. It is not healthy for a fundamentally democratic principle about the balance of power between the EU and the nation-state to be based purely on creative European jurisprudence. It is not healthy for a single European Court to possess an absolute monopoly on European legal truth. Nor is it healthy that the functioning of that Court is lacking the transparency one would expect from mature supreme courts, starting with the politicised appointment of judges by member states.

In sum, it’s not only the rule of law in some problematic member states, but also at the European Union level which is in need of strengthening. That’s where the real solution to the Polish rebellion lies. The EU’s legitimacy and its future prospects can only be served by this.

This article was originally published in Dutch on the website of Belgian magazine Knack

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