The law as a tool for EU integration could be ending

Poland is not the only EU member state challenging the supremacy of European law, as historic change is happening in how European integration functions.

Expert comment Updated 21 December 2021 Published 15 October 2021 2 minute READ

The Polish Constitutional Tribunal’s ruling that several articles of the European treaties are incompatible with the Polish constitution is prompting much debate, especially in terms of both the similarities and differences between it and rulings by the German constitutional court which have also challenged the European Court of Justice (ECJ).

Pro-Europeans are keen to draw a sharp distinction between the reasoning deployed by the two courts. They 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. Both the German and Polish cases illustrate some of the basic conflicts within the EU’s legal system for decades. What is being challenged increasingly openly – even since the UK left the EU – 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.

ECJ’s quiet revolution

Historically ‘integration through law’ was central to the European project and the ECJ was a key institution driving forward integration – usually benefiting from what Erik Stein called ‘benign neglect by the powers that be and the mass media’. Even when European integration in the form of treaties stalled in the 1960s and 1970s, ‘judicial integration’ through the ECJ continued, including its notable 1964 decision that EU law was supreme.

According to the German court’s theory of ‘constitutional pluralism’, there is in effect a constant dialogue and accommodation between the national and EU level rather than a simple primacy of EU law over national law

This self-empowerment of the ECJ – what another scholar of European constitutionalism Joseph Weiler calls ‘a quiet revolution’ – was 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.

There are important differences between the approach of the German and the Polish constitutional courts. The Law and Justice Party has politicized the Polish court, packing it with judges sympathetic to that party, whereas the German court is more independent.

In addition, whereas the German court made qualified and subdued objections to measures taken in response to the euro crisis during the past decade and, in particular, the steps towards the mutualization of eurozone debt – but often backed down with ‘all bark and no bite’ as Christoph Schmid put it – the Polish court is driven by political considerations and has challenged the supremacy of EU law in a more direct and general way.

However, the German court has made it clear it is the guardian of the German constitution and seeks to impose limits on the ECJ’s self-empowerment by arguing Europe is not a federation. According to the German court’s theory of ‘constitutional pluralism’, there is in effect a constant dialogue and accommodation between the national and EU level rather than a simple primacy of EU law over national law.

The court sees itself as the ultimate arbiter of whether steps in European integration are consistent with the German constitution, and is likely to challenge any further steps in fiscal integration even if the ECJ deems them in accordance with the treaties – as it did with the European Central Bank’s quantitative easing programme.

Supremacy of EU law is under pressure

Right across Europe, courts and politicians are increasingly challenging the ECJ and questioning the supremacy of EU law. Michel Barnier called for France to regain ‘legal sovereignty’ and should no longer be subject to the judgments of the ECJ – an extraordinary demand from the EU Brexit negotiator who regularly lectured the UK about the sanctity of the EU’s legal order.

The Polish challenge is part of a historic change in how European integration functions – or does not function

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 constitutionalisation 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.

Supremacy of EU law is under pressure contd.

If the revolution produced by judicial integration was quiet, the counter-revolution is loud and can no longer be wished away as some pro-Europeans would like. 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.