Polish Prime Minister Mateusz Morawiecki calls it “World War III” — an initiation of hostilities by the European Union to which his government will respond by blocking all business in Brussels. Strong language, you might think. Then again, if World War I and World War II taught Poles anything, it was the value of national independence.
The dispute between the EU and Poland is about sovereignty, pure and simple. Can a country be in the EU and remain self-governing? Eurocrats say it cannot, and the signs are that they will get their way.
The quarrel began when Poland’s conservative government made some judicial nominations that it saw as correcting the leftist bias bequeathed by the previous administration but that the EU regarded as court-stuffing. The EU’s Court of Justice ruled that the appointments were incompatible with EU law. On Oct. 7, Poland’s supreme court, the Constitutional Tribunal, declared that on Polish soil, Polish law had primacy over EU law.
That declaration prompted an explosion of fury in Brussels. “This ruling calls into question the foundations of the European Union,” raged European Commission President Ursula von der Leyen. “It is a direct challenge to the unity of the European legal order.”
On Oct. 27, the Court of Justice hit back, levying a fine of 1 million euros a day on Poland until it fell into line — a fine described by Poland’s deputy prime minister as “blackmail.”
Who is right? One way for Americans to think of the dispute is as the EU’s nullification crisis. Nullification, remember, was not a claim that state law should override federal law. Rather, it was a claim that when the U.S. Constitution was being misinterpreted or misapplied, a state had the right to disregard an incorrect federal decision.
Poland’s judges do not deny that EU institutions have primacy in the specific fields ceded to Brussels under the EU’s treaties. Their objection, rather, is to the doctrine that European law is superior to national constitutions. And here, the EU is on much weaker ground than is generally supposed, for that doctrine is not to be found anywhere in the treaties. It was invented, rather, in a series of judicial power grabs in the 1960s.
The Court of Justice effectively rules that the EU treaties were unlike any others in that they did not simply bind their signatories as states. Rather, they created a new legal order, directly binding on people and businesses within the member countries, regardless of whether there had been any implementing legislation at the national level. Moreover, in any clash, EU law was declared to trump national constitutions.
But where, ask Polish politicians and judges, is that doctrine written down? The closest the EU can get to an answer is to point to a declaration attached to the 2009 Treaty of Lisbon — a declaration, not a part of the treaty itself — that refers coyly to the primacy of European law “in accordance with well settled case law of the ECJ.”
You might argue, to pursue the nullification analogy, that it is in the nature of constitutional courts to extend their jurisdiction. The Court of Justice in this regard is not so very different from the U.S. Supreme Court, though its judicial activism in the cause of extending EU power is even more blatant. Again and again, from welfare claims to immigration policy, it has ignored what the law says in favor of what it wants the law to say.
The late Lord Neill of Bladen, warden of All Souls College, Oxford, and one of the greatest jurists of his generation, once commented devastatingly on the Court of Justice’s inability to stay within the treaties. “A court with a mission is a menace,” he said. “A supreme court with a mission is a tyranny.”
Will Poland put up with the tyranny? Unlike the United Kingdom, it is a net financial beneficiary from the EU. The government is not interested in leaving, and most Poles (according to most polls) agree. But staying means accepting the EU’s terms.
The arguments over nullification were effectively ended by the Civil War, after which it was clear, if it had not been clear already, that the United States was a single nation. Yes, a nation with unusually decentralized structures, but a single nation nonetheless.
Europhiles have the same ambition. Never mind that their constituent countries are widely divergent in terms of language, culture, and history. Never mind that almost no one feels “European” in the same sense that one might feel Swedish or Portuguese — or, come to that, American. The EU might never be a nation, but it intends to become a state, and it will not let anyone stand in its way.
