The ‘Polexit’ mutterings highlight a major EU flaw

While the chances of Poland leaving the bloc are slim, Sean O’Grady explains why the ruling by the country’s constitutional tribunal last week sheds light on the complex dynamic between national governments and the supranational organisation

There’s far too much at stake for Poland to head, Brexit-style, out of the door (EPA)

The Polish Constitutional Tribunal has adjudged that certain aspects of European law, and the status of the Court of Justice of the European Union, are incompatible with the constitution of the Republic of Poland. They should know, and they’re undoubtedly correct. You might well point out that they’re a little late to the game, Poland having joined the EU in 2004, but much has changed since then. In any case, it has set hearts thumping and minds racing about what it all might mean: in short, though, probably nothing, at least in the short run.

Talk about Poland leaving (or being slung out of) the European Union – “Polexit” – is somewhat exaggerated. The Polish government certainly doesn’t like being told by Brussels to take refugees (either via Belarus or Italy), or lectured by President Macron about freedom and human rights; but there’s far too much at stake, both economically and geopolitically, for Poland to head, Brexit-style, out of the door.

Freedom of movement, infrastructure investment through EU agencies, and inward private-sector business investment have been three of the major advantages of EU membership, and the Polish economy, which has found success since accession, would be hit very hard by leaving. If the Poles were given a vote on the matter, they’d vote overwhelmingly in favour of staying in. They have no desire to get closer to their domineering neighbour to the east, Russia, and would like to stay anchored in the institutions of the west – the EU and, even more so, NATO.

As for being suspended by the EU under Article 7 of the latest EU treaty, that decision requires unanimity among all member states. At the moment, Poland can rely on Hungary, another awkward member state, to veto any move against Poland, and vice versa. The EU Commission and President Macron fulminate about their powerlessness, but ironically, Poland and Hungary cannot be “bullied” because they do have, contrary to their claims, a degree of lawful power as national governments to defy Brussels. It might be different if there were a change of administration in either country, but some populist-nationalist government somewhere in the EU would probably be found to protect them.

Still, the Polish courts have reminded everyone of a fundamental flaw in the workings of the European Union. It is, after all, a supranational organisation, and boasts in effect its own constitution now; but it is not a sovereign state. In particular, the existence of the European Court is a direct challenge to the authority of national parliaments and governments as well as national courts. It is true that, on accession, states’ governments accept the supremacy of European institutions and EU laws; but some individual nations’ legal systems have not offered that same consent, because their national constitutions forbid them from doing so.

The British, though lacking a proper written constitution, have long felt uncomfortable with this anomaly, and their discomfort partly drove Brexit (though not as much as immigration, for example). The point is that, if a court in a nation state decides that some domestic law or government decision contravenes the constitution, then that country’s government and parliament can pass legislation to overrule the court’s decision. That is not possible if the European Court strikes down a piece of national law or policy. This legal dimension is how the EU differs from other international bodies, such as the UN or the WTO (World Trade Organisation).

Because that has been at least an implied feature of the EU since the founding Treaty of Rome in 1957, it has made such disagreements a surprisingly rare event, and the clash of national sovereignty and European judicial supremacy has seldom been witnessed. The first example was in 1963, when a Dutch transportation company, Van Gend & Loos, was charged import duty on chemicals from Germany. Another in 1964 concerned an Italian consumer who complained about his electricity bill, interestingly enough, because it was issued by a newly nationalised entity, which the complainant, a Mr Costa, said was acting contrary to EU competition law. The European Court agreed.

A series of activist rulings by the European Court around this time established explicit judicial supremacy at the European level, including the rights of companies and individuals to go to Europe for justice. This strong role for the European Court, established in part by its own case law, became part of the future deal for countries joining (including the UK in 1973, as was well observed at the time by the likes of Michael Foot and Enoch Powell).

Domestic courts, as well as governments, still sometimes cavil at this accretion of European justiciability. More momentously, the German constitutional court, on behalf of the federal constitution, so to speak, was uneasy about Germany joining the euro – and, only last year, about the European Central Bank’s decision to buy private-sector debt (quantitative easing) to protect the economy. Now, even Michel Barnier talks about asserting French national sovereignty. The stresses and strains of European integration can find an outlet in unexpected places. It is a funny old world.