The ruling by Poland's constitutional court has irked all champions of an ever more closely knit European Union. That is because the Polish judges have put a stop to the jurisdiction of the European Court of Justice (ECJ). They say that the ECJ is exceeding its authority when it rules on Polish laws that determine procedures for the appointment of judges and the constitution of Poland's judicial system. Poland had not granted the ECJ such authority in the EU treaties it signed, the judges in Warsaw said.
The row over competencies between national constitutional courts and the ECJ is not a new one.
Effectively, two basic views exist within the EU, as the former president of Germany's Federal Constitutional Court, Andreas Vosskuhle, pointed out in a recent interview.
The ECJ and the European Commission, for one, assume that within the EU there is absolute primacy of EU law over national law, so that the ECJ always has the final say. The second view, championed by many constitutional courts in EU member states, holds that member states have delegated only selected and clearly defined powers to European institutions.
Chef vs waiter
Simply put, it's an intractable conflict over who's the chef and who's the waiter. Even Germany's Federal Constitutional Court, which has a reputation of being extremely pro-European, has repeatedly put the ECJ in its place — most recently in May 2020 in a ruling on government bond purchases by the European Central Bank.
The main issue behind all this is that the European Union is not a federal state. An attempt toward establishing one by passing a European constitution failed in 2005 after referendums in France and the Netherlands. Despite all the enthusiasm for the idea of a federal, increasingly cohesive Europe, democrats must accept that 2005 decision, along with the fact that the European Union in its current state is an unfinished construction built on compromise.
It is also true, however, that the ruling by Poland's Constitutional Tribunal allows the national-conservative government in Warsaw free rein in undermining the rule of law and the independent legal system. As can now be seen, the attempt to stop this development by means of legal action has failed. The problem can be solved only politically.
'Victory of sovereignty' as a diversionary tactic
The national-conservative camp that rules Poland has been celebrating the verdict as a "victory of sovereignty." Such rhetoric caters to its hard-core supporters. But experience shows that this could be a smoke screen — it is hard to imagine that Warsaw intends to do without upcoming EU funding worth billions of euros.
Rather, it seems more likely that at least some parts of the controversial judicial reform process will be repealed in the near future. The Warsaw verdict is helping Prime Minister Mateusz Morawiecki, branded as a "milksop" by some in his own ranks, to save face at home while forging compromises with Brussels abroad. EU funds in exchange for rule of law will probably be the name of the game. Negotiation skills are now required. Poland is not yet lost for Europe.
This article has been translated from German.