The “Polish case” raises a fundamental question: does European law prevail over national constitutions? The peculiarity of European integration, which has been guided by law (behind which, however, a certain political conception, the neo-liberal one, is very clear) makes this question essential. In addition, the pandemic has shaken up the system that had been built up, and which can no longer be returned to. No one will be self-critical, but compromises will be sought.
Carlo Clericetti is an Italian journalist. In the past he has directed “Affari & Finanza”, a weekly supplement published by “La Repubblica”, and web portals. Currently he blogs for “La Repubblica”, for his personal website “Blogging in the wind”, and writes for other websites on economy and politics.
Cross-posted from MicroMega
Translated and edited by BRAVE NEW EUROPE
One million euros a day is the fine imposed by the European Court of Justice on Poland for refusing to comply with the court’s ruling on the abolition of a measure deemed to be detrimental to the independence of the judiciary, and therefore contrary to a fundamental principle of the functioning of democracy. But the stakes are even higher than in this specific case, and Ursula von der Leyen has set them out clearly.
The President of the EU Commission said she was “deeply concerned” by this matter and said the Commission would use “all the powers we have under the treaties to ensure” the primacy of EU law over national law, including “constitutional provisions. This is what all EU member states have signed up to, as members of the European Union”. Poland, on the other hand, has proclaimed the primacy of its Constitution.
Who will win in this conflict between European law and national constitutions? This is the crucial question. And is it true that the states have officially made that commitment?
In reality, this is not really the case. Marco Dani, a jurist at the University of Trento, observes: “The principle of primacy is not codified in the treaties (only in a declaration annexed to the Lisbon Treaty), but it is peacefully part of the so-called acquis communitaire, a set of unwritten principles shared by all member states (also in constitutional jurisprudence). Two versions of the principle can be distinguished: unconditional primacy (affirmed by the Court of Justice) and primacy conditional on respect for the fundamental principles of the constitutional order (version upheld by the constitutional courts, including the Italian one). In this case we are in the presence of a rather radical version of the second version, carried out by a Court whose independence has left much to be desired for at least six years. We will read the judgment, but from what we understand we are dealing with something quite different from the case raised by the German court in 2020. This is not a question of policy (monetary policy), but of the fundamentals of the constitutional state under the rule of law, with respect to which, in my opinion, it is difficult to assert a different constitutional identity”.
Andrea Guazzarotti, of the University of Bergamo, adds: “Also according to ‘classic’ international law, the treaties concluded by the States prevail over the national Constitutions (so much so that, in France, there is the possibility of consulting the Conseil constitutionnel before ratification, to verify whether the obligations of the treaty that is about to be concluded do not imply the need for a prior constitutional amendment). Also under international law, a State that has duly concluded a treaty cannot invoke its own Constitution as a justification for not complying with that treaty.
Except that, under international law, the only sanctions against the violation of a duly concluded treaty are of an international nature (allowing retaliation by other states, as in the WTO) and never go so far as to require national courts to disapply conflicting domestic law (even constitutional rules), as is the case under EU law. Disapplication, in fact, is not always demanded by the Court of Justice of the EU: never (almost never) if it entails a restriction of the rights of the party suing; the primacy of EU law serves to guarantee the individual against the “abuses” of national policy, according to a liberalist logic”.
As is often the case in legal matters, there is no black and white. The balance seems to tip in favour of European primacy, but not so much so as to make compromise solutions impossible, as has happened in the past when such contrasts have occurred.
This is also confirmed by Alfredo D’Attorre, of the University of Salerno, who in a book just published by Giappichelli tackles European issues in a way that has hitherto been neglected in public debate and confined to dialogue between jurists. The title is “Europe and the return of the ‘political’ – Law and sovereignty in the integration process”. (Incidentally: I applaud the publisher, one of the few who puts the notes at the bottom of the page instead of grouping them at the end).
D’Attorre emphasises how European integration has been driven essentially by law. Something radically new: not only a currency without a State, but also a law without a State and without the legitimacy given by a Constitution, the attempt to introduce which, as we will remember, was rejected by several countries, preventing it from coming into force. Nevertheless, the role of the Court of Justice has been essential in the construction of a European law, an aspect that seems generally underestimated. And the Court’s rulings have been in line with the spirit of the times, imprinting a strong neo-liberal stamp, from supporting liberalisation to weakening labour law.
In short, says D’Attorre, with this process something radically new was attempted, “a primarily legal community”, and he observes how “integration through law was linked to a process of depoliticisation of European construction, on the basis of the assumption that overcoming the directive role of politics was the condition for overcoming national divisions, sterilising social conflicts and ensuring the stability of economic development”. This project is in line with the dominant conception of the economy as spontaneously tending towards equilibrium if not ‘disturbed’ by arbitrary political choices.
The construction of the European legal area “did not primarily take place through political and legislative means. The fundamental impulse came from the conjunction of the demands of the single market, the judicial initiative of the European Court of Justice and the activity of the technical-bureaucratic Community bodies, starting with the European Commission”. In short, “the process of European integration marks a significant novelty in the institutional history of the modern West, precisely because of the different relationship between politics, law and economics. The construction of the regulatory framework of a common market and of an area of free commercial and cultural circulation, since its establishment, has not been guided by sovereign-political decision-making and supported by a state infrastructure, but has been entrusted to the legal creativity of the highest European court, the Court of Justice, and to the administrative and executive technique of technocratic powers”. Therefore, concludes D’Attorre, not the economy but the law has guided European construction.
One can therefore understand the importance of the ‘Poland case’, which is seen as a very dangerous attack even on the foundations on which the Union was built.
But didn’t the German Constitutional Court take a similar stance in its ruling on the ECB’s actions? A recent comment by Financial Times columnist Wolfgang Münchau highlights a significant difference. The Karlsruhe Court, he says, in fact accepts the pre-eminence of European law only within the perimeter of what the treaties provide for, because on those matters there has been a transfer of sovereignty; but not on the rest, including the fact that the Court of Justice cannot arbitrarily decide where its sphere of competence reaches. Of course, there is a difference, but the terrain is uncertain and slippery, because we are in the midst of interpretations. However, the Commission has opened infringement proceedings against Germany, reaffirming the all-round primacy of European law.
Here, however, we are faced with a showdown. But what weapons are available? If Poland resists, can it be expelled from the Union? No, the treaties do not provide for that. There are those who have invoked Article 7, which states that in the most serious cases the voting rights of the ‘rebel’ country can be suspended. But the most serious sanction can only be decided by a unanimous vote (excluding, of course, the country under indictment) of the Council of Heads of State and Government. And this unanimity would certainly never be achieved, because the Visegrad countries (or at least one of them, for example Hungary, which may risk something similar) would vote against. What can be done instead is to impose monetary sanctions, such as the one million a day that has just been decided, and above all to block the Recovery Plan funds, which for Warsaw are worth 36 billion (of which 23.9 billion in subsidies), about 9% of its GDP. At the moment those funds are frozen (also for Hungary, where the problem concerns anti-corruption measures).
“The problems of the enlargement to the East, which was done too hastily, are coming to the surface,” said D’Attorre. “The process of which I spoke was possible because there were common constitutional traditions, which there are not with some eastern countries. For some of them, accession was an opportunistic move, with the pretence of not adapting to what they do not like”.
But that is not the most important issue today. The pandemic has marked a caesura, the creeping crisis of the Union has become glaring: the model of right-driven integration and the claimed depoliticisation have finally appeared a naked emperor. “The depoliticisation was false,” says D’Attorre. “Legal dynamics always have political dynamics behind them. And ‘Europe is asking us’ has always been a pretext for implementing measures on which the ruling classes of the various countries agreed. But now the supposed inevitability of this path has collapsed, all the rules have been blown up without a single line of the treaties being changed. Going back to Maastricht is unthinkable, but it is difficult to build the new. There will be difficult negotiations, politics will regain its pre-eminent role’.
Certainly,” he continued, “we will need to review the rules on state aid and competition, which until now have been applied as if Europe were a closed system, whereas with globalisation, if you want to compete with the superpowers, you need world-class champions. We will have to return to an active industrial policy. In short, a paradigm shift will be needed, and this is already evident in the behaviour of many European leaders: the post-pandemic Macron is very different from the previous one, and German Economics Minister Peter Altmaier has taken positions that were unthinkable until recently.
And then there is Draghi. The head of the Italian government has launched a Nadef, the document on public accounts, which does not really care about the old budget rules. “It’s true,’ says D’Attorre, ‘to put it mildly, Draghi has made a unilateral reform of the Fiscal Compact. Suffice it to say that primary surpluses are excluded for the next three years. If someone else had done it… Further proof, if any were needed, that in the forthcoming negotiations on reforms, Draghi is an important resource for us.
Despite the very strong economic shock, this time no one spoke of a possible euro crisis. “It is a fact that is no longer in question. You cannot think of doing without the euro. But it is also clear that we cannot go back to the ‘before Corona’, that situation is now a thing of the past.”
Will we see a collective self-criticism? “I’m sure not. There will be no explicit acknowledgement of mistakes, and probably not even the treaties will be changed, which would require a long, complex procedure with an uncertain outcome. They will work on regulations, on interpretations, which is the work of politics. Everything will have to be changed while pretending not to change.
Europe will try to save itself with hypocrisy.