The ruling by Poland’s constitutional tribunal last week that it would give priority to the Polish constitution over EU law has sent shockwaves through the European Union.
The European Court of Justice had previously held that measures taken by the Polish government which undermine the independence of the country’s judiciary violated EU law. But judges in Warsaw ruled last Thursday that in doing so the court had exceeded its competence and that they would give primacy to the Polish constitution over EU law in this area.
European Commission president Ursula von der Leyen responded that the commission would use “all of the powers at its disposal” to enforce EU law and leading MEPs speculated that Poland had been placed on the road to “Polexit”.
If the bloc cannot be confident that national judges are truly independent, it cannot be sure that those judges will feel able to uphold EU law
This is certainly a grave threat to the union. The main reason the bloc is more powerful than other international organisations is that its law is enforced by national courts and has primacy when there is a clash between EU law and national law. This means that individuals can rely on EU law in their local court and can enforce it against their own government.
This is in stark contrast to most forms of international law which require states to take action when a treaty is breached or relies on voluntary co-operation with international rulings.
The EU single market requires no less. Having a common set of rules governing trade in goods and services among 27 states is pointless if each state can pass its own rules and give priority to them if they clash with EU law. Moreover, if the bloc cannot be confident that national judges are truly independent, it cannot be sure that those judges will feel able to uphold EU law against national governments in cases that come before them.
For this reason, the actions of the Polish government and the Polish constitutional tribunal represent a far greater threat to the EU than Brexit. The departure of a member state, if anything, reinforced the solidity of the EU system. If a member state consistently defies European law, the whole EU legal order may start to unravel.
The European Court ruled that a state could not be expelled from the bloc meaning that an involuntary 'Polexit' is unlikely
The union is not powerless to respond. However, its room for manoeuvre is hobbled by the legacy of complacent “end of history” thinking of the 1990s in which it was considered inconceivable that a European country that had embraced liberal democracy would ever turn away from it.
Accordingly, when the EU expanded to include formerly communist countries it was not considered necessary to give the union robust powers to react to a situation where an existing member state turned away from liberal democratic values.
EU treaties only allow serious steps to be taken against a member state by the unanimous agreement of the other member states. This has meant that, for the past decade, the bloc has struggled to respond effectively to the increasing violation of liberal democratic norms by the governing parties in Hungary and Poland, each of which can block measures against the other.
The main tool against measures such as attacks on judicial independence in Hungary and Poland has been cases taken to the European Court which has repeatedly ruled that EU membership requires respect for judicial independence.
In addition, last year, the union succeeded in adopting a “rule of law mechanism” allowing for suspension of EU funding for member states where their violation of principles such as judicial independence poses a threat to the integrity of the Brussels budget.
However, there are serious obstacles to using these tools effectively. Poland and Hungary managed to insert wording into the rule of law mechanism that sets a very high threshold for the suspension of funding.
In addition, though they have condemned the Polish ruling, the actions of Germany and France have undermined the union’s ability to react effectively. The German constitutional court ruled in May last year that it would not accept the primacy of EU law in all circumstances in a ruling related to the bond-buying programme of the European Central Bank. Emmanuel Macron’s government recently asked the French Conseil d’État to refuse to give primacy to EU law in a case about data retention (the French judges gave an ambiguous ruling that dodged this question).
Furthermore, in a 2018 case about whether Brexit could be reversed before it took effect, the European Court ruled that a state could not be expelled from the bloc meaning that an involuntary “Polexit” is unlikely.
The situation is not hopeless. The court can impose a recurring fine on Poland that will remain in place until it comes into compliance with its EU legal obligations. The creation of the enormous EU coronavirus fund means that Poland is in line for billions in EU funding. The commission can refuse to authorise this money and dare the Polish government to take it before the very court the Poles are defying to challenge this refusal.
Above all what is required is political will. The true strength of the union lies in the fact that it makes decisions across a vast array of areas, from product standards to regional funding policy. In many of these areas Poland will have vital interests at stake.
If member state governments are truly determined to defend their union from the slow disintegration that the Polish government’s policies threaten, they can ensure Poland pays a price every time an issue it cares about is up for discussion.
The complacency of the 1990s has left the EU with limited legal and political tools to deal with this situation. If the union’s leaders cannot find the determination to use those tools to the maximum extent, they may find that in a few years they do not have much of a union left to defend.
Ronan McCrea is professor of constitutional and European law at University College London