EU exposed as Poland raw unravels bloc’s ‘major weaknesses’

Ursula von der Leyen 'concerned' over Polish court ruling

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Stefan Auer, a professor of European studies at the University of Hong Kong, and Nicole Scicluna, a professor in government and international studies at Hong Kong Baptist University, said the move was “more worrying for the EU” than Poland leaving the EU. The ruling by the Polish tribunal was “far more complicated” than Polexit as the country’s “place in Europe is still quite secure”, the experts said.

“What is less assured, however, is the future of the EU as a quasi-federation,” they noted.

At the beginning of October, the tribunal ruled that some parts of EU treaties are incompatible with the Polish constitution, thereby challenging a pillar of European integration.

The decision was welcomed by Jaroslaw Kaczynski, the leader of the largest party in Poland’s governing coalition.

He said that any different ruling would effectively mean that “Poland is not a sovereign state”, and insisted that the EU had no right to interfere in the country’s administration of justice.

Though the professors wrote that challenging the EU’s legal supremacy “is not unprecedented”, they said “the Polish court went much further” than previous attacks.

This was because “Poland’s court has declared whole provisions of the EU treaties to be incompatible with the constitution and, therefore, invalid.”

The European Commission said the ruling raised “serious concerns” and reaffirmed that “EU law has primacy over national law, including constitutional provisions”.

However, the two experts contended this claim in their piece for Politico, stating that the principle had not been included in any EU treaty – but by the European Court of Justice in a 1964 ruling – and consensus on it was “far from absolute”.

They wrote: “No such principle was enshrined in the 1957 Treaty of Rome, the-then European Economic Community’s founding document, or in any subsequent EU treaty.

“Rather, legal supremacy was established by the European Court of Justice (ECJ) itself, in its landmark 1964 Costa vs. ENEL decision.

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“The great success of the EU as a community of law lies precisely in the fact that national authorities upheld that principle for many decades after 1964, despite it never having been expressly endorsed by the EU’s member countries.”

When “the EU’s member countries had an opportunity to explicitly recognize EU law’s primacy over national law, they didn’t take it”, the professors said.

“The ill-fated Treaty Establishing a Constitution for Europe included an article enshrining EU legal supremacy.

“That provision, among others, was dropped from its successor, the Lisbon Treaty, after the EU’s constitution-making project proved a bridge too far for European citizens.

“That the Constitutional Treaty and the Lisbon Treaty were so similar makes the omission of EU legal supremacy all the more notable.

“That it’s been well over a decade since the EU so much as attempted major constitutional reform makes one wonder whether the foundational principles of EU legal order are as well-settled as is commonly asserted.”

Last week, in defence of the tribunal’s ruling, Polish Prime Minister Mateusz Morawiecki quoted a number of rulings over the supremacy of member states’ constitutions over some aspects of EU laws in a speech to the EU.

The Polish leader surprised EU commission president Ursula von der Leyen as he admitted to be quoting rulings by French, German and Danish courts.

He added: “I can see from your faces that you do not agree with me and I don’t understand why you disagree.”

In the latest sign of a growing fraught relationship with the economic bloc, Poland has been ordered to pay a million euros (£846,000) for every day it fails to comply with the EU by maintaining its tribunal for hiring and firing judges.

Polish Deputy Justice Minister Sebastian Kaleta tweeted that the demand amounted to “usurpation and blackmail”.

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