I still remember my shock in the early 1990s when a colleague at the London newspaper “The Times” told me that the Eurosceptics were winning the argument. Until then, I thought enemies of Europe were British eccentrics with bad mouth and bad breath. Nobody to take seriously. But they managed to set the tone in the debate.
Twenty years of EU-related judgments by the German constitutional court had a similar effect. The court has never ruled against an EU treaty or EU policy. It was never a question of the judgment, but of the legal argumentation. In last year’s decision on the asset purchases by the ECB, Karlsruhe attacked the EU Court of Justice because it had exceeded its mandate, ie “ultra vires”.
It also took the view that the Member States have given the EU well-defined powers, but that sovereignty clearly rests with the Member States. It is they who give and it is they who take away.
In its ruling last week, the Polish Constitutional Court went beyond anything the German Constitutional Court has ever done. It declared Article 1 of the Treaty on European Union, the clause on which the EU is founded, to be incompatible with certain parts of the Polish Constitution.
Top jobs of the day
Find the best jobs now and
be notified by email.
The same applies to Article 19 TEU, on which the ECJ is based. If the judgment is upheld, this would constitute a legal polexit. Because if a member state is of the opinion that the EU treaties violate its national constitution, it must either amend the constitution, get the other members to agree to an amendment to the treaties, or leave the EU.
Important role of the Federal Constitutional Court
If it wanted, the EU could even argue under international law that this ruling would automatically invalidate Poland’s accession treaty and thus its EU membership.
The role of the German constitutional court in all of this is indirect, but important nonetheless. It took part in a legal discourse that made the Polish outrage possible in the first place. You may remember that the ECJ was an important factor in the Brexit discussions.
If only the retainers had known they could have renationalized some of those powers? Despite the Europhobia that led to Brexit, there were far fewer thoughts of secession in the legal professions than in Germany or Poland.
In contrast to the courts in Germany and the United Kingdom, the Polish court is staffed with political loyalists. the [englische Übersetzung] The judgment reads more like a political pamphlet than a legal text. The German constitutional judges are also appointed by politicians, but they represent a broad spectrum of legal opinions.
The anti-European prejudices did not arise through political interference, but within the legal profession itself. Lawyers as well as economists follow academic schools of thought that agree with their own political views.
Some of the arguments put forward at the Polish hearings were direct copies of the arguments put forward by the German Constitutional Court. Karlsruhe, for example, popularized legal terms such as “ultra vires” and the principle of democracy.
Some of the arguments put forward in Poland were direct copies of the arguments put forward by the German Constitutional Court.
(Photo: dpa)
They sound more innocent than they are. Karlsruhe argues that sovereignty can be transferred, but not shared. This means that the ECJ cannot decide on its own area of competence. It also means that EU law does not take precedence over national law in areas outside the agreed limits – and that it is the national courts that decide the exact location of these limits.
Karlsruhe, however, accepts primary EU law within these limits, such as the internal market or trade policy. Fiscal policy and defense do not belong to this area of responsibility. So if you want a fiscal union or a European army, you cannot do so under the existing treaty. The next stage of European integration will only take place once the member states agree to amend the EU treaties and – in the case of Poland and Germany – also the national constitutions.
Polexit: possible but unlikely
The Polish ruling will almost certainly lead Poland to back down. I consider the Polexit to be a possible but unlikely outcome. But keep in mind that this is how Brexit started too.
The Karlsruhe version of legal Euroscepticism was much smarter – and more effective. She succeeded in creating legal facts out of nowhere that established the EU negotiating position of successive German governments. The Polish judgment, on the other hand, is a deliberate provocation that could play into the hands of the ruling law and justice party ahead of the 2023 elections.
Karlsruhe is not responsible for what is happening in Poland. But it is responsible for initiating a discourse that others pick up and push to the limit.
The author: Wolfgang Münchau is the director of www.eurointelligence.com
More: Climate protection or social peace? Why the EU is in a dilemma