Resisting the European Court of Justice, the European Union’s supreme court, Poland has sparked resurgent judicial nationalism across the political bloc.
The situation centers on the Polish Supreme Court’s Oct. 7 ruling that Polish law is generally supreme over EU law. That ruling represents a fundamental rebuke to the EU’s political character — its aspiration to ultimate legal authority. The 2009 Treaty of Lisbon declares that “the Treaties and the law adopted by the [EU] on the basis of the Treaties have primacy over the law of Member States.”
Poland is shredding that declaration. This raises EU concerns over the politicization of the Polish judiciary, a real concern, but what’s really playing out here is a long-overdue battle over democratic political authority. Do the people, their parliaments, and their courts rule their own countries? Or do bodies composed mostly of foreign leaders?
It is this simple: Were the United States a member of the EU, decisions of the U.S. Supreme Court could be overturned by judges from Belgium.
Its hyperbolic rhetoric aside, the EU lacks moral legitimacy. It has avoided reforms that might otherwise have staved off Poland’s action. Even the 2016 Brexit vote and Britain’s departure from the EU failed to light a fire under the Eurocrats. The restoration of the British Parliament’s sovereignty over European judges was a significant motive for the pro-Brexit vote.
The central problem with EU law is quite simple: It’s not at all what law is supposed to be. Its jurisprudence centers on the overarching principle of building a federal European superstate, not on the traditional judicial responsibility of applying law to facts.
This is plain in the form of case law in the European Court of Justice, which subordinates the principle of precedence to the priority of political federalism. But the moral deficiency is also made clear by the foundation of EU law.
After all, the ECJ’s established supremacy over national laws was enacted by the 2009 Treaty of Lisbon. That treaty was ratified by national parliaments, not by popular votes in each member state. The distinction matters because the original plan was for member-state popular votes to adopt an EU “constitution.” This was abandoned after 2005 referendum votes in France and Netherlands rejected the constitution.
Facing Poland, EU leaders are worried. Speaking last month, European Commission President Ursula von der Leyen said Poland’s “ruling calls into question the foundations of the European Union. It is a direct challenge to the unity of the European legal order. This is the first time ever that a court of a member state finds that the EU treaties are incompatible with the national constitution.”
The most fervent EU federalists are demanding that the EU withhold financial aid from Poland until it changes course. This has only inflamed Poland’s nationalist government.
Yet Poland’s refusal to cooperate is not really what von der Leyen and the EU federalists fear most. Their great concern is that Poland might be the start of something much broader.
Their concern is legitimate. Just consider what’s happening in the second-most powerful EU state, France. Candidates are now lining up to contest French President Emmanuel Macron in next April’s elections. But on the Left and the Right, and in that uniquely French in-between political space, candidates are offering proposals to insulate France’s judicial sovereignty from ECJ rulings. Put another way, they’re pledging to do what Poland is doing.
Their number includes an erstwhile vanguard of the EU. Michel Barnier, who actually led the EU’s Brexit negotiations with Britain, now pledges to limit the ECJ’s jurisdiction over French law on matters of immigration.
Poland, under heavy political fire from most EU member states, has this advantage: If enough member-state voters see this judicial battle for what it is, they are unlikely to side with the federalists. Urgent judicial reform would seem an obvious imperative. But that would require something in short supply in Brussels and Luxembourg: political humility.
