CREATION OF AN INTERGOVERNMENTAL SUBSIDIARITY COURT

The Polish Constitutional Tribunal’s ruling that several articles of the European treaties are incompatible with the Polish constitution has prompted much debate and challenges the European Court of Justice (ECJ).

Pro-Europeans see the Polish court’s challenge as an exceptional case which the European Union (EU) cannot ‘tolerate’ because it would lead to the ‘demolition of the EU’s legal order from within’ and argue the EU must take a tough approach to Poland by re-asserting the supremacy of EU law.

But this view misses a bigger long-term shift in the EU. The Polish case illustrates some of the basic conflicts within the EU’s legal system for decades. What is being challenged increasingly openly is the idea of the EU as a de facto federation in which non-majoritarian institutions such as the ECJ have final say about the quality of democracy in member states.

This self-empowerment of the ECJ  was made possible because there was a permissive consensus in member states which allowed judicial integration to continue largely unchallenged. But this has now changed as both politicians and national courts are more willing to challenge what they see as judicial overreach.

The Law and Justice Party has politicized the Polish court, packing it with judges sympathetic to that party. The Polish court is driven by political considerations and has challenged the supremacy of EU law in a direct and general way.

Right across Europe, courts and politicians are increasingly challenging the ECJ and questioning the supremacy of EU law. Michel Barnier calls for France to regain ‘legal sovereignty’ and should no longer be subject to the judgments of the ECJ. Other possible French presidential candidates such as Valérie Pécresse and Eric Zemmour are also openly challenging the primacy of EU law. The UK, of course, is fighting its own battle with the EU about the ECJ’s role in the Northern Ireland Protocol.

It was not the current Polish government but the people of France and the Netherlands who blocked the attempt at explicit constitutionalization of the EU in a referendum just one year after the 2004 enlargement. Whereas the Constitutional Treaty ‘would have codified the doctrine of EU legal supremacy’, that provision was dropped from its successor the Lisbon Treaty, again indicating consensus on EU legal supremacy is not as strong as is often claimed.

The Polish challenge is part of a historic change in how European integration functions – or does not function. On its own, this is not going to bring about the end of the EU but, together with other challenges to the ECJ, it may be the end of one approach to integration which sees the law as a major tool to achieve ‘ever closer union’. Pro-Europeans must now recognize a further judicialization of politics cannot offer a solution to what is fundamentally a political challenge.

Note

Belgian Law Professor Marc De Vos argues that the superiority of the EU’s top court has not been enshrined in any Treaty, but is voluntarily accepted by national top Courts, a situation which he rightly considers to be unsustainabl, as he wrote: “One thing is missing, however: the anchoring of a clear choice in the constitutional treaties of the Union about the hierarchical relationship between the EU and its member states.”

Perhaps some may argue that a “Declaration concerning primacy”, inserted into the Lisbon Treaty, signed in 2007, can serve as a legal Treaty basis for the primacy of EU law, but the Intergovernmental Conference which adopted the Treaty of Lisbon also attached an Opinion of the Council Legal Service on the primacy of EC law, which stressed that “the fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.” In other words: the legal basis for the principle of primacy of EU law is not a Treaty, but the jurisprudence of the EU’s top court in Luxembourg. As Professor De Vos notes, referring to an earlier ruling by the Polish court: “There are now cracks emerging in the collective discipline among the courts of the 27 member countries. Both in France and Germany, top courts have questioned the functioning of the European Court of Justice. This was already unseen. The Polish top court has now gone one step further in contesting the legal force of EU law altogether”

In other words, some kind of settlement, perhaps an addendum to the EU Treaty, detailing the conditions under which EU law is superior, to be ratified by all EU27 member states, to settle the matter, may not be a bad idea.

Hungarian Prime Minister Viktor Orban signed a Hungarian government decree setting out that “The primacy of EU law can only apply in those areas where the EU has powers”.

As former German President Roman Herzog has pointed out and documented, back in 2008: “Judicial decision-making in Europe is in deep trouble. The reason is to be found in the European Court of Justice (ECJ), whose justifications for depriving Member States of their very own fundamental competences and interfering heavily in their legal systems are becoming increasingly astonishing. In so doing, it has squandered away a large part of the trust it used to enjoy.”

More recently, former German Constitutional Court judges have made similar complaints. One of them, Dieter Grimm, has complained that the EU often extends “the transferred powers extremely far, so that that area of competence of the member states and thus also the field of application of the national constitution and national democracy is undermined.”

In the view of Professor Marc Devos, the best guarantee to stop ECJ overreach – which is the reason for top national courts challenging the superiority of EU law – is the creation of a “Subsidiarity Court”, a new intergovernmental institution superior to the EU legal order and manned by representatives of the judicial branches of EU member states, exclusively tasked to stop the European Court of Justice from adopting unacceptably extensive interpretations.

Conclusion

It cannot be denied that in a majority of EU member states, the supremacy of EU law has been challenged by top judicial bodies. In itself, it is not a bad thing not to enshrine the principle of EU law in a Treaty, as long as there is a willingness among top national courts to accept this principle. However, it is clear that – partially due to continuous transfers of powers to the EU level, aided by the ECJ – this consensus has eroded over the years. Therefore, whether one is annoyed about ECJ overreach, or whether one does not want the likes of the Polish government to use this as a so-called “constitutional cover” to fight Brussels, the response should be the same. In both cases, it may be a good idea for the 27 member states of the EU to codidy in a Treaty when precisely EU law is superior and more importantly, to set up an intergovernmental Subsidiarity Court to police this.