The EU thread

[Sheilbh]

In other words Germany is strong enough to be let to do whatever they want without triggering a backlash, but Poland is not.

Maybe. I would say the German Constitutional Court is a very good court - and there is a lot of legal scholarship backing up their approach (it's "constitutional pluralism"). That's why it's a respectable position.

I've never thought the "constitutional pluralism" approach works and I've always thought it's a problem even when it was mainly Germany. In part that might just be a bias I've had since I was at law school and we were studying the approaches of different national constitutional systems to the EU - about 2/3s of my class went on to barristers and dressed like middle-aged barristers at the age of 21 or whatever (barbours, red trousers, weekends in the country etc), I'm 90% sure they were all Brexiteers and they absolutely loved the German court's approach. So I am biased.

But I think the bigger point is that this principle works because the German court is good and won't push it too far - but not all courts are as good (they may not be as technically impressive, or as impartial etc) and if they apply the same legal principle the entire EU order collapses. Daniel Keleman said that the "constitutional pluralist" line would be that they are horrified at this decision and the fact that an idea can be abused doesn't discredit the idea - which is true but it's the "guns don't kill people, people do" of EU law.

[Zanza]

I am not a legal scholar, but I understand there is a difference between the two cases.

In Poland, the government asked the Constitutional Court to find that the Polish Constitution is of higher legal ranking than the EU treaties in conflict. The court confirmed that. That's fundamentally incompatible with EU membership.

The German Constitutional Court does of course acknowledge that the EU treaties are of higher legal ranking than our constitution.
The case about the ECB/ECJ recently was about whether some action of the ECB was covered by the EU treaties or ultra vires, i.e. beyond what the EU treaties allow. The German Constitutional Court asked the ECJ to adjudicate, which it did. However their opinion that the ECB was not acting ultra vires was supposedly not convincing. The way the German Constitutional judges read the EU treaties, the ECB acted ultra vires and the ECJ did not reign the ECB in, thereby itself acting ultra vires. As the EU institutions operate based on the transferred sovereignty of the member states, that implies there is a limit to EU institutional powers. The ECJ is only the highest Court within the limit of these treaties, but has no jurisdiction outside. The EU institutions deciding themselves where those limits are is against the treaties. The German Court thus said that the ECJ acted outside its competence to increase EU competence that was not transferred by the member states to the EU.
Obviously the member states, being the underlying sources of sovereign power of the EU must politically decide how much power to transfer. That's not for the ECJ to decide.
So the German case is at the very edge of whether or not something is an EU competence or not. This needs a political, not a judicial solution.

[Sheilbh]

Yeah - I am not a German lawyer either it should be said. So I am not an expert.

The issue with the German Constitutional Court v the CJEU on the ECB ruling - is that national constitutional courts cannot determine whether or not European institutions are operating within their powers under the European legal order and cannot decide that CJEU rulings on that matter are invalid. It is why I think the Economist piece about this being a "Calhounian"/nullification crisis moment is spot on because it's effectively about who gets to decide the competence and extent of the EU legal order.

This has been running for decades between the Constitutional Court and the CJEU without coming to a head (because the Constitutional Court is a good court). The basic issue is the CJEU says they have exclusive authority to adjudicate in cases about the boundaries of EU and national competencies; the Constitutional Court says that because it's a transfer of sovereignty they have authority to rule on those cases and that German Basic Law bans the "transfer of competence to decide on its own competence" to the EU.

For a long time the view was that as this had never actually caused a clash or a serious crisis (the ECB case is the closest and the Constitutional Court was careful about this) - there was no need to address the issue. There was no need to answer and impose a hierarchy, instead issues should be resolved through dialogue etc. This is fine as long as the Constitutional Court doesn't push it to a crisis and the other 26 constitutional courts don't assert their rights too.

Ultimately the problem is if all 27 constitutional courts (as opposed to the CJEU) are able to determine the competence of the CJEU and the competence of the EU - then the entire legal order is destroyed. It would mean different things in each country and basically each member state would pick and choose which bits of EU law they wanted to be subject to through constitutional amendments. If national courts do think the CJEU has overstepped their powers they can state that obiter or they can basically say the government must leave if the situation doesn't change (i.e. through constitutional amendment or treaty changes). What they can't do, in my view, without blowing the whole thing up is invalidate CJEU rulings on the scope of EU competence.

I do think there is a difference with Germany but that difference is just that their court is a good court - it is genuinely independent, it is technically competent etc. But what's goes for that court has to go for the courts that aren't independent etc. That's why I think the Germany was playing with matches, Poland's trying to burn the house down analogy is true.

The basic principle here is the same - whether national courts can overrule or invalidate the rulings of the CJEU and the role of the national constitutional order in relation to the European constitutional order. Even if in Germany it is only focused through "kompetenz-kompetenz" question and monetary policy, while the Polish court is taking a broader approach and going after values. There is a difference with Germany - but I basically agree with Daniel Kelemen's analysis that the Constitutional Court's position on this is the doctrinal equivalent of a loaded gun for other member states (inlcuding authoritarian ones) to use.

This was absolutely predictable and predicted with the Constitutional Court's ruling:
https://verfassungsblog.de/national-courts-cannot-override-cjeu-judgments/

[Crazy_Ivan80]

Polish court rules that EU laws incompatible with its constitution

Serious challenge to integration comes against backdrop of rows between ruling nationalists and Brussels

Poland's constitutional court has ruled that some European Union laws are in conflict with the country's constitution, in a serious challenge to a key tenet of European integration.

The constitutional tribunal ruled that some provisions of the EU treaties and some EU court rulings go against Poland's highest law. Two judges dissented from the majority opinion.

The ruling will define the future of Poland's already troubled relationship with the 27-member bloc in the key area of law and justice.

So Poland will leave the EU? God I hope the door doesn't hit it on the way out.

they could also stay and try to change the rules. an equally valid option

[DGuller]

When the chips are down, it's hard to imagine that any country with any sort of power would give up its sovereignty, and making some entity's laws superior over your own is pretty much that.  The only way it would work is when the big players dictate what such laws are, make sure that none of them materially differ from their own, and then bully the minor members into submission.

[Zanza]

The reference to Calhoun shows that the German Court is right: Unlike American states (or German states), EU member states are sovereign entities and can freely leave (see Brexit). They confer power to the EU, but that is by nature limited. The entity that is created by conferred sovereign powers cannot have the power to increase its own competence. If it had that, the member states would not be sovereign anymore. The EU is not (yet) a state and the ultimate arbiter of its powers are the governments of its member states. They can add and reduce to its powers. Not the CJEU.

You know that I am a European federalist, but in its current form, the EU is in fact limited, not sovereign and so is jurisdiction of the CJEU. The member state governments should strive towards developing the "Staatenverbund" into federation.

[The Brain]

Polish court rules that EU laws incompatible with its constitution

Serious challenge to integration comes against backdrop of rows between ruling nationalists and Brussels

Poland's constitutional court has ruled that some European Union laws are in conflict with the country's constitution, in a serious challenge to a key tenet of European integration.

The constitutional tribunal ruled that some provisions of the EU treaties and some EU court rulings go against Poland's highest law. Two judges dissented from the majority opinion.

The ruling will define the future of Poland's already troubled relationship with the 27-member bloc in the key area of law and justice.

So Poland will leave the EU? God I hope the door doesn't hit it on the way out.

they could also stay and try to change the rules. an equally valid option

That leaves Poland still in the EU though.

[Sheilbh]

Right - but doesn't that get to the point.

The EU's competence ultimately rests with the member states and as you say that is political. The CJEU is the only court that can rule on the interpretation of European law, in particular the treaties. So it is the only court capable of deciding whether or not something is within the powers granted by states through the treaties - it has always taken an expansive view of its role and of the EU's powers. The role of national courts if they disagree and believve the EU is now acting outside of its competence and in conflict with their constitutional provisions is to say that as a matter of domestic law: x government must either amend the constitution, seek an EU political solution (such as a treaty update) or leave the EU.

What they can't do if the EU is to exist in a meaningful way is override the CJEU's position on where, as a matter of European law, the EU's competence is - did the CJEU get the treaties? They have no authority to make that judgement. The practical consequence of that would be 27 different interpretations of when EU law applies and, I think, probably the politicisation of the Polish court would become the norm across Europe as national constitutional courts become an avenue of European politics.

[Crazy_Ivan80]

Polish court rules that EU laws incompatible with its constitution

Serious challenge to integration comes against backdrop of rows between ruling nationalists and Brussels

Poland's constitutional court has ruled that some European Union laws are in conflict with the country's constitution, in a serious challenge to a key tenet of European integration.

The constitutional tribunal ruled that some provisions of the EU treaties and some EU court rulings go against Poland's highest law. Two judges dissented from the majority opinion.

The ruling will define the future of Poland's already troubled relationship with the 27-member bloc in the key area of law and justice.

So Poland will leave the EU? God I hope the door doesn't hit it on the way out.

they could also stay and try to change the rules. an equally valid option

That leaves Poland still in the EU though.

So? It's not a bad thing that the Brussels Bozos are taken down a few pegs

[Zanza]

The role of national courts if they disagree and believve the EU is now acting outside of its competence and in conflict with their constitutional provisions is to say that as a matter of domestic law: x government must either amend the constitution, seek an EU political solution (such as a treaty update) or leave the EU.

That's what the German Constitutional Court did. It stated that the German government and parliament violated their constitutional obligations towards German citizens. Their violation is that they did not act in what the court considers the ultra vires act by the ECB.

[Sheilbh]

That's what the German Constitutional Court did. It stated that the German government and parliament violated their constitutional obligations towards German citizens. Their violation is that they did not act in what the court considers the ultra vires act by the ECB.

That's part of what they did - from their English translation they determined that the judgement of the CJEU exceeded its competence under the treaties so its decision was ultra vires and "thus has no binding effect [in Germany]."

It also reviewed the position under European law of the ECB's actions.

But if national courts can decide that the CJEU is acting outside of its mandate in its decisions intepreting European law then EU cannot be applied across all member states. It undermines the entire legal order of the EU.

I'd add national courts also cannot start reviewing whether European insitutions are acting in accordance with European law or not - for the same reason. The German Constitutional Court also conditioned the consequences for the German government "unless the ECB Governing Council adopts a new decision that demonstrates in a comprehensible and substantiated manner that the monetary policy objectives pursued by the ECB are not disproportionate to the economic and fiscal policy effects resulting from the programme." Again that doesn't work if all 27 member states are doing it.

Edit: For what it's worth I'm not sure the court is wrong - I think the EU institutions are at the very edge of their powers under the treaties and if they go further (as they need to and should) I think that needs a new treaty.

[Zanza]

As long as the EU is no federation, national courts can and will act like this. The solution is political, namely establishing a true federation. That's currently not feasible though.

[Sheilbh]

But so far the only courts I'm aware of that have acted like this are the German and the Polish - and it's been a principle of CJEU jurisprudence since the 60s. The German Constitutional Court's take on this - from my little law school comparative study which was really minimal - had been pretty unique to Germany.

As I say the German Constitutional Court and the CJEU have always disagreed on this. Until recently they managed to stay out of each other's way. I think it's problematic as an idea, but purely as theory repeatedly stated but never acted on it can be almost ignored - but we're not at that stage any more.

[Crazy_Ivan80]

The solution is political, namely establishing a true federation. That's currently not feasible though.

and may it long remain so

[Josquius]

The solution is political, namely establishing a true federation. That's currently not feasible though.

and may it long remain so

Personally I think its all been down hill since the next village over stopped being our mortal enemies.