In its ruling last week, Poland’s constitutional court went beyond anything the German constitutional court ever did. It declared Art. 1 of the Treaty on European Union, the clause that establishes the EU, not compatible with certain chapters of the Polish constitution. It found the same for Art. 19 TEU, which establishes the CJEU. If sustained, this would constitute a legal Polexit. If a member states believes that the EU treaties violate their national constitution, they either have to change the constitution, get the other members to agree to a change in the treaties, or leave the EU. The EU could, if it wanted to, even make an argument under international law that this ruling automatically voids Poland’s accession treaty, and thus its EU membership.
The role of the German constitutional court in all of this is indirect but nonetheless important. What it did was engage in a legal discourse that made the Polish outrage possible. Readers may recall that the CJEU was a big factor in the Brexit discussions. If only the remainers had known that they could have renationalised some of those powers? Despite the europhobia that led to Brexit, there was much less of a sense of secessionism in the legal profession, compared to with Germany or Poland.
Some of the arguments used during the Polish hearings were straight copies of arguments made by the German constitutional court. Karlsruhe, for example, popularised legal concepts such as ultra vires and the democracy principle. They sound more innocent than they are. Karlsruhe argues that sovereignty can be conferred but not shared. This implies that the CJEU cannot be the arbiter of its own remit. It also means that EU law does not override national law in areas outside the agreed perimeter, and that it is the national courts that decide the precise location of that perimeter. Fiscal policy and defence are not part of that remit. So, if you want a fiscal union or a European army, you cannot do this inside the existing treaty.
The Polish ruling will almost surely end up in Poland backing down. I see Polexit as a possible but improbable outcome. But remember that Brexit, too, started out that way.
The Karlsruhe version of legal euroscepticism has been far more clever, and more effective. It managed to create legal facts out of thin air that informed the EU negotiating position of successive German governments. The Polish ruling, by contrast, is drafted as a deliberate provocation that might play into the hands of Law and Justice ahead of the 2023 elections. Karlsruhe is not responsible for what is happening in Poland. But it is responsible for starting a discourse that others take up and push to the limits.
October 13, 2021 6:00 am