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

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


In a parallel universe, the UK would never have left the EU and instead adopted the strategy currently being attempted by Poland. A few weeks ago, Warsaw consolidated its position as Brussels’ first whip when its highest court declared that the Polish constitution had supremacy over EU law.

In a speech to the European Parliament this week, Polish Prime Minister Mateusz Morawiecki made it clear that the decision has a clear objective: to stop the superstate project in its tracks. Amid a lot of nonsense thrown around from both sides, this claim deserves to be taken seriously.

It should come as no surprise 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 of the Franco-German axis, British diplomats calculated that the best way to prevent the EU from deepening its union too much would be to enlarge it. Extent and depth together would become impossible – and it is. Unfortunately, the result is a bloc incapable of making critical strategic decisions.

The judgment of the Polish Constitutional Court concluded that several key articles of the main EU treaties are in contradiction with Poland’s own constitution and are therefore void, as the Polish constitution is the supreme arbiter of the country’s law. The judgment, Mr Morawiecki said in Strasbourg, is aimed at tackling the ever-expanding judicial interference by European courts in defiance of democratic consent, a phenomenon that Britain is sadly experiencing. The Polish court is also not the first European court to reach such a conclusion.

Most notably, the German Constitutional Court has always reserved the right to cancel EU activities if it does not like them and has done so on several occasions, most recently last year when it declared that the European Central Bank’s quantitative easing program was illegal. The main difference is that Berlin has always chosen not to act on judgments of its national jurisdiction.

Poland can therefore rightly complain that it is being treated unfairly. Since the court ruling, European leaders have aligned themselves to condemn Warsaw. They can’t do much but harangue his government, because the suspension of Poland’s political rights in the EU requires unanimity from member states, which Viktor Orban’s Hungary would never support. But the creation of a € 800bn (£ 677bn) EU Covid bailout has given Brussels a stockpile of freebies it can withhold based on Poland failing to respect not EU values ​​such as the rule of law.

There are two reasons why this argument is much more poisonous than the legal facts alone warrant. The first is that the ruling party in Poland, Law and Justice (“PiS” in Polish), has waged a much broader attack on democratic norms since taking office in 2015. Under PiS, the government has started to censor criticism of the Polish state broadcaster; used state arms to buy independent private media outlets and stifle control; ignored the proper procedures to select the judges of the Constitutional Court, instead of filling it with supporters; and stoked a hate campaign against homosexuals and immigrants.

In 2015, I met the man who later became the Prime Minister of Agriculture of PiS and listened to him explain that every region in Poland should operate on the basis of autarky, feed and n ” only use products from its own factories. Overall, there are good reasons to be uncomfortable about PiS and its plans for Poland. It’s just that the recent legal judgment is not, in and of itself, one of them.

The second aggravating factor is that Warsaw is consciously targeting one of the EU’s most sensitive issues: its obsession with the supremacy of its own law over everything. The EU has pursued this issue to the extreme, 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 join the European Court of Human Rights was invalid because it gave a rival jurisdiction competence in an area not covered by EU law. In other words, the EU could not under any circumstances submit to an international human rights judgment, as this could 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 concern investment agreements between EU member states or between EU states and third parties.

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

Taken together, these judgments and the 2014 ECHR judgment are a direct attack on any international law outside the EU and show the imperialist mindset of Europe’s highest court. Incidentally, they do not bode well for the Northern Ireland Protocol, which allegedly only gives the ECJ a limited role in dispute arbitration.

Sadly, Poland’s dubious ruling party is an unattractive hero in the struggle to contain the spread of European law. The problem is that the PiS clearly intends to roll back European law not to protect Poland’s freedoms, but to implement its own illiberal order. It would have been better for everyone if a British government had resisted legal interference from Europe at the time – and if Brussels had listened.

Instead, Brussels is left with a set of deeply flawed alternatives. The EU could stand idly by and let Poland continue – the most likely outcome – effectively allowing the creation of a new category of European state where fundamental freedoms do not fully exist.

This could spark the wrath of its legal order on Poland, possibly ultimately forcing Warsaw out of the bloc. Or he can subdue Poland and win the legal battle, allowing his courts to continue to expand unchecked.

There is a fourth option, of course, which is for the EU to take note of how its highest court has aggravated European nations for years and conclude that perhaps an overhaul is needed. But whoever waits for such a sense to prevail will wait a long time.

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