Poland’s battle against the EU’s imperial court reveals Europe’s fundamental flaws

The Polish government is hardly an appealing champion for the cause, but its critique of the extension of EU law is a sound one

In a parallel universe, the UK would never have left the EU and would instead have adopted the strategy now being tried by Poland. A couple of weeks ago, Warsaw cemented its position as Brussels’ top whipping boy when its highest court declared that the Polish constitution has supremacy over EU law.

In a speech to the European Parliament this week, Poland’s Prime Minister Mateusz Morawiecki made it clear that the ruling has one clear aim: to stop the superstate project in its tracks. Amid a lot of nonsense being hurled around on both sides, this claim deserves to be taken seriously.

It shouldn’t surprise anyone that Poland, after centuries of domination and dismemberment by foreign states, is deeply resistant to the project of “ever closer union” pursued by Euro-enthusiasts. This was, indeed, one of the main reasons why the UK strongly supported Poland’s accession to the bloc in 2004.

Fearing perpetual control by the Franco-German axis, British diplomats calculated that the best way to stop the EU deepening its union too much would be to widen it. Breadth and depth together would become impossible – and so it is proving. Unfortunately, the result is a bloc unable to take critical strategic decisions.

The judgment by Poland’s Constitutional Tribunal concluded that several key articles of the EU’s main treaties contradict Poland’s own constitution and are therefore void, because the Polish constitution is the supreme arbiter of the country’s law. The judgment, Mr Morawiecki stated in Strasbourg, is about pushing back against the constant expansion of legal meddling by EU courts in defiance of democratic consent, a phenomenon with which Britain is sadly familiar. Nor is Poland’s tribunal the first European court to reach such a conclusion.

Most notably, Germany’s constitutional court has always reserved the right to nullify EU activities if it doesn’t like them and has done so repeatedly, most recently last year when it stated that the European Central Bank’s quantitative easing programme is illegal. The main difference is that Berlin has always opted not to act on its domestic court’s judgments.

So Poland can justifiably complain that it is being singled out for unfair treatment. Since the court ruling, EU leaders have lined up to condemn Warsaw. There is not a lot they can do except harangue its government, because suspending Poland’s EU political rights requires unanimity among member states, something Viktor Orban’s Hungary would never support. But the creation of an €800 billion (£677 billion) EU Covid rescue package has given Brussels a stock of goodies it can withhold on the basis that Poland is not respecting EU values such as the rule of law.

There are two reasons why this row is far more venomous than the legal facts alone justify. The first is that Poland’s ruling party, Law and Justice (“PiS” in Polish), has conducted a much broader assault on democratic norms since winning power in 2015. Under PiS, the government has begun to censor criticism by Poland’s state broadcaster; used arms of the state to buy up independent, private media and stifle scrutiny; ignored the proper procedures for selecting judges for the constitutional tribunal, instead packing it with supporters; and whipped up a campaign of hate against gay people and immigrants.

In 2015, I met the man who later became PiS’s first agriculture minister and listened to him explain that every region of Poland ought to operate on the basis of autarky, feeding itself and using goods only from its own factories. All in all, there are good reasons to feel queasy about PiS and its plans for Poland. It’s just that the recent legal judgment isn’t, in itself, one of them.

The second aggravating factor is that Warsaw is consciously taking aim at one of the EU’s most sensitive subjects: its obsession with the supremacy of its own law over everything. The EU has pursued this issue to extreme lengths even by its own standards.

In 2014, for example, the Court of Justice of the European Union (ECJ) ruled that the EU’s agreement to accede to the European Court of Human Rights was invalid because it gave a rival court jurisdiction over an area not covered by EU law. In other words, the EU could not possibly subject itself to international judgment on human rights, because this might limit the power of EU law.

A more recent series of cases has forcibly inserted the ECJ into treaties that have nothing to do with the EU. The cases relate to investment agreements between EU member states or between EU states and third parties.

The European Court has essentially ruled that international agreements simply cannot exist without being subordinate to its rule wherever there is a tenuous link to an EU member state, because the EU has some sort of jurisdiction over matters like foreign direct investment. This means international arbitration mechanisms cease to be independent of the EU.

Taken together, these rulings and the 2014 ECHR judgment are a direct assault on any international law outside the EU and display the imperialist mindset of Europe’s top court. Incidentally, they bode rather ill for the Northern Ireland Protocol, which supposedly gives only a limited role to the ECJ in arbitrating any disputes.

Alas, Poland’s dubious ruling party is an unappealing hero in the fight to contain the spread of EU law. The problem is that PiS is clearly intent on pushing back European law not in order to protect Poland’s freedoms, but in order to implement an illiberal order of its own. It would have been better for everyone if a British government had stood up to Europe’s legal meddling back in the day – and if Brussels had listened.

Instead, Brussels is left with a set of deeply flawed alternatives. The EU could stand by and let Poland carry on – the likeliest outcome – effectively allowing the creation of a new category of European state where fundamental freedoms do not exist in full.

It could unleash the wrath of its legal order on Poland, perhaps eventually forcing Warsaw out of the bloc. Or it may subdue Poland and win the legal tussle, allowing its courts to continue expanding unchecked.

There is a fourth option, of course, which is that the EU takes note of how its top court has for years aggravated Europe’s nations and concludes that perhaps a rethink is required. But anyone waiting for such sense to prevail will be waiting a long time.

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