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[Andreas Kluth] Poland’s question EU must answer

Oct. 15, 2021 - 05:31 By Bloomberg
By going officially and formally rogue, Poland may unwittingly have done the European Union a favor. In blatantly challenging the bloc’s legal authority, Warsaw is forcing the EU to decide whether it wants to become the “ever closer union” it claims to be, or to remain the malleable club of nations it actually is. Union or club -- either way the EU will have to make fundamental changes if it intends to survive in the long run.

Last week’s judgment in Warsaw was the judicial equivalent of the Confederacy firing on Fort Sumter in 1861. Poland’s highest court, called the Constitutional Tribunal and seen as beholden to the populist and nationalist government, declared that parts of EU law conflict with Poland’s constitution and that the latter takes precedence. In other words, national courts outrank the European Court of Justice.

Brussels, obviously, cannot let this stand. That situation would overturn the EU’s presumed vertical hierarchy, in which the European Court, based in Luxembourg, sits atop the 27-member nations’ high courts the same way the US Supreme Court has primacy over state courts.

The Poles have thereby made themselves the EU’s ultimate boogeyman. The tribunal’s judgment comes after years of other breaches by Warsaw of fundamental European values. Like its populist allies in Hungary, Poland has compromised the independence of its own judges and courts, undermined the rule of law and freedom of the press, mistreated migrants and abused gay, lesbian and transgender rights.

And yet, this latest Polish snub of the EU only gave a brazen and vulgar expression to an ambiguity that’s been there all along. What exactly is the European Court’s proper role and its relationship with national courts? To put it differently, what exactly is the European Union?

Last year, for example, Germany’s highest court also produced a verdict that appeared to question Luxembourg’s presumed primacy. But the German judges in Karlsruhe used more diplomatic language, and the case concerned the arcane subject of bond purchases by the European Central Bank, so it blew over.

The EU is not a federation like the US or Germany. Nor, however, is it a mere league, like the United Nations. It’s something in between. In effect, Brussels and the 27 member states share sovereignty. In matters of trade, for example, the nations have ceded it to the EU; in foreign policy, they retain it. In other areas they just muddle through, which in practice leaves most people confused.

Historically, the closest analog was the Holy Roman Empire that sprawled across central Europe from the Middle Ages until 1806. There, too, the empire and the constituent principalities shared sovereignty. The equivalent of today’s European Court, for example, were two imperial tribunals, in Vienna and Speyer. But the hierarchy between them and the courts in the principalities wasn’t clear. Slowly but surely, the empire became weaker. Eventually, Napoleon showed up and just abolished it.

The better way of dealing with such ambiguous sovereignty is to write a constitution, as the fledgling US did in 1787. Even that wasn’t an immediate fix -- the high courts of Virginia and other states spent years challenging the primacy of the US Supreme Court. But law and precedent eventually clarified the federal architecture that exists today.

The EU also tried to adopt a constitution once, but in 2005 French and Dutch voters rejected it in referendums. In its absence, the bloc continues to rely on treaties among the member states. But those are clearer on the European Court’s horizontal supremacy -- its power to review the law coming out of other pan-European institutions -- and rather vague on its vertical authority vis-a-vis national courts.

Another constitutional convention would revive the idea of “ever closer union,” which implies a sovereign European state as the ultimate destination. Europe’s leaders and citizens may regard that as unrealistic or even undesirable. It could, in time, lead other nations to follow the British example and exit. If so, the EU should at least admit that a federation is no longer the goal.

The alternative would be to drop the “ever closer” label and stipulate that the EU is in fact a confederation, a league in which the members retain sovereignty. Poland, Germany and all others, in that scenario, would be within their rights to reject European rules that violate their national constitutions. But then the bloc must also be practical and, like almost all other clubs, give itself the power to expel members that break its norms, such as democracy or rule of law.

In practice, the EU is more likely to revert to type. That means Brussels and Warsaw will bicker for years, and the EU will try to withhold money here or there, but nobody will dare to ask the big question. In a sense, that would be the easiest path, and the worst.

Andreas Kluth
Andreas Kluth is a columnist for Bloomberg Opinion. -- Ed.