The EU thread

[Zanza]

https://verfassungsblog.de/whoever-equals-karlsruhe-to-warsaw-is-wildly-mistaken/

Whoever equates Karlsruhe to Warsaw is wildly mistaken
In the Polish, and to some extent also in the German public discourse, the ruling of the Federal Constitutional Court of 5 May 2020 on the partial unconstitutionality of the ECB's PSP programme is considered to be qualitatively comparable to the ruling of the Polish Constitutional Tribunal of 7 October 2021. In this respect, the Polish judgement is merely seen as a continuation of the established case law of the Bundesverfassungsgericht. From a legal point of view, however, this is clearly false for several reasons, which will be briefly outlined here.

Effectively, the Polish ruling – unlike the German one – calls into question a cornerstone of European integration with its sweeping rejection of the primacy of European law, up to a point where there are serious doubts as to whether Poland can continue to remain part of the EU. In detail, the following differences exist:

1..In its tenor, the Polish court establishes the unconstitutionality of central primary law norms (Art. 1 and 19 TEU) and questions in principle the established primacy of European law with regard to the Polish constitution. The Federal Constitutional Court, on the other hand, in its case law consistently accepts the primacy also over the Constitution and in its ruling only classified an individual secondary legal act of an EU institution as ultra vires by way of exception.
2. By declaring primary legislation unconstitutional, the Polish Constitutional Tribunal is breaking new legal ground. This has never been done before in any Member State, especially since Article 1 TEU, a central article, is affected. Dogmatically, this is very doubtful in any case. In any case, the BVerfG's ruling was not about primary law, but about a secondary law purchase programme.
3. The Polish Constitutional Tribunal does not follow an established and limited doctrine of reservations and does not develop such a doctrine in this judgement. In any case, the judgement is notable for its lack of reasoning, especially in comparison to the BVerfG judgement. Unlike the latter, it is not about harmonising and reconciling European law in its claim to primacy with the requirements of the national constitution in a cooperative procedure. Rather, a blanket primacy of the Polish constitution is postulated (almost somewhat defiantly). There is not even an attempt to limit this constitutional primacy to certain constellations (such as national identity) and thus not to make it absolute.
4. The Polish Constitutional Tribunal's decision, unlike in the case of the Federal Constitutional Court, is not about a single act of a single EU institution. Rather, the primacy of European law is excluded comprehensively and for all areas with regard to the constitution. Contrary to public perception, this by no means only concerns the field of legal remedies. This was quite different at the BVerfG: Here it was only about the PSP programme; other, future purchase programmes were expressly not even covered.
5. Furthermore, the provisions of the Union Treaty are also classified as unconstitutional by the Polish Constitutional Tribunal to the extent that they jeopardize the Republic of Poland's functioning ,,as a sovereign and democratic state". What this is supposed to mean is completely unclear and ultimately open to the free interpretation of the Polish government. Taken literally, the Polish government can thus oppose any obligation that follows from European law. This would be nothing less than the end of the EU as a community of law. The supranational organisation would become a weak confederation of states. Once again, nothing comparable can be found in the ruling of the Federal Constitutional Court.
6. The Polish Constitutional Tribunal's judgement has an effect primarily on the future and can and probably will be used against future judgements of the ECJ and other actions of the EU. This is probably also the reason why the Polish government itself applied for this ruling in the first place. The ruling of the Federal Constitutional Court, on the other hand, explicitly referred only to the ECB's PSP programme and explicitly excluded other purchase programmes. It therefore has rather an effect on the past. Now that the dispute over the proportionality of the PSP programme has been settled, it no longer has any direct effect. How the Court will decide in future rulings remains to be seen. The established reservations have been activated once; apart from that, the primacy of European law remains completely untouched, also and especially from the perspective of the BVerfG.
7. The Polish Constitutional Tribunal resists any form of alleged encroachment by the EU in general and the ECJ in particular. In contrast, the Federal Constitutional Court explicitly calls for stricter control by the ECJ and will then retreat again to its reserve role. Whatever one thinks of the BVerfG's ruling, it is in any case not directed against the institutional order of the EU, but rather wants to see it strengthened with respect to separation of powers.
8. With regard to the design of the national judicial system, the Polish Constitutional Tribunal ultimately denies any competence of the EU. This is practically untenable, since the Polish courts are part of the European judicial network and act within this framework as functional Union courts. For this reason, non-independent national courts are incompatible with the European rule of law, which is why such an organisation of a national judiciary can and must be sanctioned by the EU. This is a matter of fundamental principles, the non-existence of which would prevent EU accession. The case of the Federal Constitutional Court, on the other hand, was about very technical questions of monetary union, which ultimately do not threaten the foundation of the EU as such from the outset. In fact, the BVerfG's ruling did not even have any serious impact on the monetary union or the ECB's ability to act (as I, among others, have already predicted here).
9. The Polish Constitutional Tribunal denies national judges the established power to review the conformity of national measures with European law themselves and to disregard conflicting provisions. This is another fundamental encroachment on basic principles of the European judicial system and the community of law. Obviously, none of this can be found in the BVerfG decision.
In this context, the Polish Constitutional Court also prohibits national judges from applying superseded national law, insofar as the new superseding law should be contrary to European law. This also massively damages the legal community with effect in the future; the EU could no longer be considered a supranational organisation. There is nothing of that sort in the decision of the Federal Constitutional Court.

The bottom line is this: Regardless of what one thinks of the BVerfG ruling, the Polish ruling has a completely different quality. It shakes the foundations of European integration, massively impairs the functioning of the supranational European judicial system and, in this respect, primarily affects the future. With the blanket rejection of the primacy of European law, European integration in its previous form is no longer possible. Strictly speaking, Poland's remaining in the EU is no longer conceivable under these circumstances; the EU would be nothing more than a weak confederation of states (like the German Confederation of 1815-1866). The BVerfG's ruling, on the other hand, does not question any of the established principles, not even and especially not the primacy of European law, but merely sees the EU outside its competences in a very specific and hardly relevant field in the future. To put it differently: In one case, integration in general becomes practically impossible, while in the other case, only selective corrections are demanded without touching the basic principles. The dispute between the ECJ and the BVerfG can be resolved, the one between the Polish Constitutional Court and the EU (and the ECJ) cannot – at least not legally. Formally, this judgement still has to be published by the Polish government. Until then, it has no formal legal force. Irrespective of this, however, the political damage has already been done.

Here is what I wanted to say better than I could say it. The Polish case is a full scale repudiation of the basic principles of the European Union. They need to withdraw if they want to keep this ruling.

[Sheilbh]

I don't really disagree with much of that - but I disagree that the German Constitutional Court's ruling wasn't "directed against the institutional order of the EU". It absolutely was - it overrode a CJEU ruling and said that European Union court had got European law wrong, so was acting ultra vires and the ruling was not applicable in Germany.

I also think it's slightly misleading because there was a long line of the German Constitutional Court flagging this possibility and the CJEU disagreeing. It never came to a head, but it's a bit like Scalia or Clarence Thomas's dissents and obiter statements. The ECB case didn't happen out of nowhere on its own merits alone - there'd been this trail of breadcrumbs and comments that had not actually been tested. I think ignoring that doesn't work.

As I say I think the Constitutional Court could be right legally, I think they are a good (competent, indpendent, non-politicised) court - but their line of reasoning in this and actually taking the steps they did over the ECB was opening the door to a less independent or politicised court from doing what the tribunal in Poland's done. And given the issues the EU has had enforcing the rule of law that was always only a matter of time. There is a difference for sure - but I'd go back to that analogy the Constituional Court was playing with matches, accidentally started a fire which has been quickly put out and everyone wants to move on, Poland's tribunal is trying to burn the house down.

Edit: Not related to the Poland issue - saw the front page in the FT was aboute the Russian ambassador to the EU saying gas supply issues could be solved more quickly if the EU stopped treating Russia like an "adversary"

[Zanza]

If you consider a dispute on informing about a technical decision of an EU institution somehow the same as invalidating Article 1 of the Treaty of the European Union then sure, same thing.

[Tamas]

If you consider a dispute on informing about a technical decision of an EU institution somehow the same as invalidating Article 1 of the Treaty of the European Union then sure, same thing.

Even if the legal technicalities make it a more minor point (I have no idea so I won't argue that) in term of EU impact the German decision can (and possibly did) have the same level of impact as the Poland one. Germany is the engine of the EU. Integration can survive Poland opting out, heck even Italy opting out, but cannot survive Germany opting out. The German decision IMHO was at least equally if not more dangerous precedent, simply due to the sheer size and influence of Germany.

[Sheilbh]

Even if the legal technicalities make it a more minor point (I have no idea so I won't argue that) in term of EU impact the German decision can (and possibly did) have the same level of impact as the Poland one. Germany is the engine of the EU. Integration can survive Poland opting out, heck even Italy opting out, but cannot survive Germany opting out. The German decision IMHO was at least equally if not more dangerous precedent, simply due to the sheer size and influence of Germany.

I agree - and I'd add the prestige of the German Constitutional Court is huge internationally. It's a very respected and admired court.

My point isn't that the situations or the rulings are the same. Indeed, no two legal cases ever are. The point is that the principle written about by the Constitutional Court for decades and then used by them over the ECB issue was the same principle picked up and applied by the Polish court. That's the reason that - I think posted about it - when the ECB ruling came in in 2020 lots of people said: this is unprecedented and this will be used by Poland and Hungary (see the 20-25 or so European law academics' comment I posted earlier). And I agree it came from an important country and respectable court which provided even greater cover.

Now Hungary can make a similar case and write "as the esteemed courts of Germany and Poland have already established"

But the other concern I have right now is what the EU can do about this because I've read a few pieces and basically they have financial leverage and enforcement proceedings in the CJEU etc. But that seems to be it. It was agreed that the rule of law package would be approved but suspended until the CJEU heard the Polish and Hungarian challenges to it - those challenges are only at the hearing stage now. I'm not sure how quickly the CJEU can move - I'm not sure what it's quickest turnaround is but it normally takes about six months from the hearing to get the Advocate General's opinion and the opinion of the court follows six months after that.

In terms of Withdrawsaw, I've read a couple of pieces by different EU lawyers and their view is basically that for that to happen Poland would need to use Article 50 and there's no sign they will. There's an argument that the other member states could basically use enhanced cooperation to set up a "no Homers club" within the EU. Otherwise apparently the best alternative would be for the other 26 (maybe excluding Hungary) to do Article 50 immediately and re-found an EU 2. Obviously that doesn't sound very practical but that they're reaching for that suggests there's really not really many mechanisms available to deal with it.

[Iormlund]

I, for one, would love to see some sabre-rattling from Warsaw and Budapest. They are our main competitors for new contracts.

[Crazy_Ivan80]

Even if the legal technicalities make it a more minor point (I have no idea so I won't argue that) in term of EU impact the German decision can (and possibly did) have the same level of impact as the Poland one. Germany is the engine of the EU. Integration can survive Poland opting out, heck even Italy opting out, but cannot survive Germany opting out. The German decision IMHO was at least equally if not more dangerous precedent, simply due to the sheer size and influence of Germany.

I agree - and I'd add the prestige of the German Constitutional Court is huge internationally. It's a very respected and admired court.

My point isn't that the situations or the rulings are the same. Indeed, no two legal cases ever are. The point is that the principle written about by the Constitutional Court for decades and then used by them over the ECB issue was the same principle picked up and applied by the Polish court. That's the reason that - I think posted about it - when the ECB ruling came in in 2020 lots of people said: this is unprecedented and this will be used by Poland and Hungary (see the 20-25 or so European law academics' comment I posted earlier). And I agree it came from an important country and respectable court which provided even greater cover.

Now Hungary can make a similar case and write "as the esteemed courts of Germany and Poland have already established"

But the other concern I have right now is what the EU can do about this because I've read a few pieces and basically they have financial leverage and enforcement proceedings in the CJEU etc. But that seems to be it. It was agreed that the rule of law package would be approved but suspended until the CJEU heard the Polish and Hungarian challenges to it - those challenges are only at the hearing stage now. I'm not sure how quickly the CJEU can move - I'm not sure what it's quickest turnaround is but it normally takes about six months from the hearing to get the Advocate General's opinion and the opinion of the court follows six months after that.

In terms of Withdrawsaw, I've read a couple of pieces by different EU lawyers and their view is basically that for that to happen Poland would need to use Article 50 and there's no sign they will. There's an argument that the other member states could basically use enhanced cooperation to set up a "no Homers club" within the EU. Otherwise apparently the best alternative would be for the other 26 (maybe excluding Hungary) to do Article 50 immediately and re-found an EU 2. Obviously that doesn't sound very practical but that they're reaching for that suggests there's really not really many mechanisms available to deal with it.

from what I heard is that the Polish ruling restricts primacy of EU in those areas where the EU itself is acting outside of the compentencies given to it in the treaties.

as for withdrawsaw? maybe the western europeans needs to become a bit more tolerant of views other than those common in their federalist bubble. Other people, other ideas you know.
and a federal eu? thanks but no thanks, far too many authoritarian tendencies in the EU as it is. Wouldn't want to give them power over all the countries and peoples inside the organisation.

[Syt]

[Admiral Yi]

Good on ya Holland.  Get your shit together Sweden.

[The Brain]

Good on ya Holland.  Get your shit together Sweden.

Dude, you should see my area.

[Syt]

Trust in national parliament:

[Josquius]

Shame the UK isn't involved in these anymore. As the response is just laughter.

[Sheilbh]

Intrigued by: Austria, unexpected North-South division in Italy, Berlin v rest of former GDR.

It'd be really interesting to regional UK breakdown. Last time the "Quality of Governance" surveys were done (I think 2018-19 and 2017) the UK was basically the same as western Germany/the Netherlands (and, interestingly, improved from 2013 and 2010 the previous rounds - possibly slow detoxification from expenses scandal?). But I can't see if they asked this specific question/can't get a breakdown.

[Duque de Bragança]

Swedes must really hate each other if they trust more their parliament than other (Swedish) people. 

Also, glad to see Castilians, Basques and Catalonians share something, if a very low trust in the Cortes Generales. 

[celedhring]

I wonder if hardcore pro-independence dudes are rating the Catalan parliament instead of the Spanish one