Wolfgang Streeck – Rusty Charley and the Rule of Law

Another brilliant analysis of EU political reality by Wolfgang Streeck

Wolfgang Streeck is the Emeritus Director of Director the Max Planck Institute for the Study of Societies in Cologne, Germany

Cross-posted from El Salto

Translation by BRAVE NEW EUROPE

File:Jarosław Kaczyński i Viktor Orbán, cropped.jpg

Photo licensed under the Creative Commons Attribution 2.0 Generic license. 

Strange things are happening in Brussels, and getting stranger by the day. The European Union (EU), a potential superstate beholden to a staggering democratic deficit, is preparing to punish two of its democratic member states and their elected governments, along with the citizens who elected them, for what it considers a democratic deficit. For its part, the EU is governed by an unelected technocracy, by a constitution devoid of people and consisting of a series of unintelligible international treaties, by rulings handed down by an international court, the Court of Justice of the European Union (CJEU), as well as by a parliament that is not allowed to legislate and knows no opposition. Moreover, treaties cannot be reviewed in practice and rulings can only be reviewed by the Court itself.

The current issue is an old one, but it has long been avoided, in the best tradition of the European Union, so as not to wake sleeping dogs. To what extent does “European” law, made by national governments meeting behind closed doors in the European Council and elaborated in the secret chambers of the ECJU, trump national law passed by the democratic member states of the European Union? The answer seems obvious to simple minds unversed in EU affairs: where, and only where, the member states, in accordance with the terms of the Treaties (written with a capital T in Brussels presumably to indicate their sublime nature), have conferred on the EU the right to legislate in a way that is binding on all of them, so that in matters which they have delegated to the EU they are subject to the same law and must comply with it to enable their Union to function without friction.

Not so bad if that were all. Already in the early 1960s the CJEU discovered in the Treaties the general supremacy of EU law over national law. Note at a glance that nothing similar is to be found in the Treaties; one needs to be a member of the Court to observe that supremacy. At first, insofar as the jurisdiction of the European Union was still very limited, nobody seemed to care about this. Subsequently, however, as the European Union set about opening up national economies to the ‘four freedoms’ of the single market and then introducing the common currency, the doctrine of the primacy of European law operated as an effective device for extending the Union’s authority without the need to rewrite the Treaties, especially as this became increasingly difficult with the increase in Member States from six to, pre-Brexit, 28.

What was initially no more than a highly selective upward transfer of national sovereignty gradually became the main institutional driver for what was termed ‘integration by right’, which was carried out by the Union’s central authorities and co-administered by various coalitions of member states and governments.

This type of integration was considered, in particular by legal scholars, to be normatively and technically superior to integration through politics. Although the motives changed over time, integration through law always involved a careful reading of the Treaties in order to discover ever new reasons for subjecting national political entities to a post-democratic international technocracy. Given the de facto blockage of the revision of the Treaties following the defeat of the draft Treaty for a European Constitution in the French referendum of 2005 (55.7% of votes against), the CJEU eventually became the most important legislative body of the European Union and, indeed, the body that drafted its constitution. (Paradoxically, one of the most likely reasons for this rejection of the constitutional treaty was that it explicitly stipulated the primacy of European law).

No one knows for sure what is hidden in the depths of the European Treaties in their current version, which are hundreds, even thousands of pages long, depending on the typeface used. The only exception is the CJEU, and that is because what it claims to find in them is for all practical purposes actually what is present in them, since the Court always has the last word.

Thus the CJEU, or in anticipation of it the European Central Bank or the European Commission, can read into the Treaties functional reasons for what the Germans call “more Europe” – monetary policy must (!!) today (!!) include fiscal policy – or general intentions – hidden in the commitment of the member states to an “ever closer union among the peoples of Europe” it can read people instead of peoples – or “values” such as “democracy” and “human rights” may demand, for example, more formative sex education in Hungarian public schools.

What in each case will be found in the Treaties may be uncertain; what we can be sure of, however, is that the Court will never miss the opportunity to “build Europe”, by which we mean the confirmation of the supremacy of European law over national law in accordance with the interpretation ultimately established by itself. If we look at how the ECJ fulfils its duties, it reminds us of the character in one of Damon Runyan’s novels, Rusty Charley, a small-time gangster active on Broadway in the 1940s, who, when playing dice with his colleagues, would throw the dice into his hat and then announce the result without allowing the other players to have a look. Although he always won, no one felt inclined to ask him stupid questions, as Charley was “the kind of guy who hated to be called a liar”.

The fact that the supremacy of European law over national law has now reached such heights of high political drama is due to the policy of extending the competences of the European Union, which has become a policy of hyper-extension of competences. Faced with conflicts and cleavages that they are unable to contain, the “pro-Europeans” are pinning their hopes on the CJEU, so that the exhausted legitimacy of supranational politics can be replaced by the legitimacy of law.

At the centre of the current controversy are Poland and Hungary with their “illiberal” political regimes. Both countries insist on a strict construction of the Treaties, strictly limiting the scope in which both the policy of a given member state and European policies can be of concern to other member states or to the European institutions themselves. In the so-called “Treaty basis”, a country’s legal system is subject to EU supervision to the extent that this may be necessary to ensure the proper and non-corrupt use of EU funds.

Although according to a literal reading this is all that can be understood by the requirement of the existence of a “rule of law”, the “pro-Europeans” argue that this extends to the status and organisation of each country’s supreme court, in particular as regards its independence from the executive. Under the treaties, member states are also expected to conform to certain parameters of democracy and respect for human rights; if they fail to do so, the European Council can, by unanimous vote, disenfranchise them, but not expel them, which is not an option for an international organisation that considers its membership irreversible.

Corruption and the politicisation of a country’s supreme court are usually not in fact a problem for European politics. As far as corruption is concerned, Poland is generally considered a clean country (Hungary less so), while countries such as Romania, Bulgaria, Slovenia, Slovakia and Malta are widely known as bastions of business cronyism and venality, not to mention, in some cases, the deep-rooted mistreatment of their minorities. Indeed, both Slovakia and Malta have recently witnessed the murder of independent journalists, perpetrated by criminal groups connected to their respective government circles, involved in investigations related to cases of high-level corruption. Yet no one threatens to cut off European subsidies to these countries, while the liberal European press carefully refrains from comparing the Polish or Hungarian “rule of law” with those of Slovakia and Malta.

There is reason to believe that this is the case because, unlike Poland and Hungary, both countries pay back by always voting in favour of the European Commission and otherwise keeping their mouths shut. Similarly, political influence over the high courts of a given country is something that EU bodies have good reason not to make too much of a fuss about: where Constitutional Courts exist, they are all without exception and in one way or another politicised.

As for Spain, see the recent case of Alberto Rodríguez. (Politicisation is sometimes considered frankly desirable: let us not forget that the Commission and the European Parliament have taken Germany to the ECJ because its government has not prevented its Constitutional Court from issuing an independent opinion, to the annoyance of the German government itself, on the limits of European legal authority, which in the present case concerns the debt purchase programmes of the European Central Bank). What is special in the cases of Poland and Hungary is not that their high courts are appointed “exercising influence”, but that their governments, like increasingly the German Constitutional Court, openly insist on the restrictive application of the primacy of European law and the corresponding extensive interpretation of their respective national sovereignties, which openly challenges “integration through law”, or through empire, as pursued by the ECJU.

The story unfolding in Europe at the moment is not legal, but political. Its most recent episode began with the European Council’s approval of the multi-billion Next Generation European Union Recovery Fund linked to the coronavirus pandemic, with considerable sums earmarked for Hungary and especially Poland, although both countries have been marginally affected by the virus.

For the European Parliament, which has to approve the measure, this offered an opportunity to multiply its efforts to bring about regime change in both countries by making the disbursement of recovery fund resources dependent on Poland and Hungary making political and legal concessions to the EU. Both countries have elections coming up soon and the calculation of European technocrats was that the loss of these European funds, supposedly dedicated to empowering Poles and Hungarians to achieve a better life, more resilient to capitalist crises in general and the coronavirus in particular, would erode the current governments, as would obtaining them by their caving in to “Europe” altogether.

At best, this would put new governments in power in line with the international elite’s management of the disbursement of the aforementioned funds, which would be less accountable to their peoples and more accountable to “Europe” as currently constituted by the European Union. This could also increase the number of liberal parliamentarians in the European Parliament from these two countries, making it even more “pro-European” than it already is.

The problem for the Commission was that the NGEU Recovery Fund required a unanimous vote of the European Council, with Poland and Hungary prepared to vote against it if it contained any special clauses directed against their governments. At the same time, the European Parliament made its approval conditional on the Commission’s acceptance of what came to be known as the “rule of law mechanism”, which forced the Commission to withhold funds to countries that did not respect the primacy of European law, as found by the ECJU.

In order to get its way, the Commission proceeded in agreement with the European Parliament while, evidently, promising Hungary and Poland that the “rule of law mechanism” would never be activated. Officially, it was announced that it would be used only after approval by the ECJ, before which Poland and Hungary would challenge its legality. This was supposed to take time, exceeding the disbursement of NGEU Recovery Fund resources. Meanwhile, in the Council, the frugal northern Europeans, led by the Dutch, insisted that Poland and Hungary be treated harshly, probably to make their citizens believe they would save precious northern European resources from cuts in Polish and Hungarian allocations as punishment for not adhering hard enough to the rule of law.

The result was an unprecedented public row, with mounting pressure on the Commission to be tough on the two “illiberal democracies” and an invitation to the Court to move faster than expected. In response to all this, the Polish Constitutional Tribunal issued a judgment, long in the making but well guarded for political reasons, in which, invoking the precedent set by the German Verfasssungsgericht [Constitutional Court], it declared that the Polish Constitution was in general above European law. Further altercations can certainly be expected.

Non-German observers cannot help but get the impression that the worst inciters of these controversies surrounding the battle for the liberal-democratic deficit in Poland and Hungary are Germans. A prominent figure in this respect is Katharina Barley, a Social Democrat and former justice minister in the Grand Coalition until her party made her the head of the list for the 2019 European elections, which ended in a real disaster, given that she won 15.8% of the vote compared to 27.3% five years earlier. Having to move irretrievably to Brussels, Barley managed to win one of the fourteen (!) vice-presidencies of the European Parliament. In the autumn of 2020, Barley announced on German radio that the “rule of law mechanism” was to be used to “starve to death” (aushungern) Viktor Orbán in Hungary and Poland in general.

In Poland, there are flashing memories, shared across generations, of the last German attempt to starve the country, memories evidently far removed from “pro-European” German politicians, who, however, know for sure how neighbouring countries have to be governed: according to the German model as specified by the German government via Brussels. Likewise, Manfred Weber (CSU), head of the Christian Democrats in the European Parliament and frustrated former candidate for the Commission presidency, brandished the threat of Poland and Hungary’s expulsion from the European Union, even though this is not provided for in the treaties. The German foreign minister, also a Social Democrat, welcomed the “rule of law” rule for its ability to “harm” Hungary and Poland, being applauded by a large group of German Greens inside and outside the European Parliament, and hailed by the German press, “quality” or otherwise, including public broadcasting media. If we add Von der Leyen, we can excuse Polish citizens for believing that their country, whose government, like Hungary’s, has the support of roughly half its population, has been the target of German aggression.

What is behind all this apart from the incredible historical amnesia, or sheer stupidity, of really too many German “pro-Europeans”? The money flowing to the smaller EU countries via the NGEU Recovery Fund must seem enormous to the average German taxpayer, especially when he or she begins to guess the huge costs of the impending “energy turnaround” or the renewal of Germany’s really resource-starved infrastructure after the implementation of austerity policies. The real purpose of the recovery fund – to keep national elites in power in Eastern Europe committed to the internal market and averse to any kind of alliance with Russia or China – is too sensitive to talk about in public. So it must be shown that money buys something higher than imperial stability: submission to Western European cultural leadership as documented by the selection of leaders to the taste of its elites.

A case in point would be the neoliberal Donald Tusk, former Polish prime minister, who was thrown out of office after ruining his country’s national economy only to be placed in a Brussels feeding trough as one of several presidents of the European institutions, where he was trained to stage a victorious return to his country once Kaczyński and his ilk had been brought to an end.

Will Poland and Hungary learn to behave like Romania or Bulgaria, or even like Malta and Slovakia, and thus placate their enemies in Brussels? If they refuse to do so and the CJEU has the last word, another moment of truth may present itself, this time with an Eastern twist. How the Court will rule is as certain as the number of points on Rusty Charley’s dice will yield the figure he needs to win. This may pave the way for Polexit, just as Merkel’s refusal to make concessions to Cameron on immigration added a corresponding impetus to Brexit.

Although von der Leyen has increasingly adopted the rhetoric of Barley, Weber, and the Greens, Merkel, during her final hours as chancellor, urged the EU to exercise restraint and try a political rather than a legal solution. (Merkel may well have been informed by the United States that it would not look kindly on Poland, its strongest and most loyal anti-Russian ally in Eastern Europe, leaving the EU, where it is fed by the EU so that it can be armed by the US power).

In this context, note that there now seems to be a slow realisation in other member states of the sheer presumptuousness of the EU’s increasingly explicit insistence on the general primacy of its law over that of its member states.

The battle in Poland and Hungary may put an end to the era in which “integration by right”, thanks to its incrementalism, could be treated by increasingly short-sighted national governments with benevolent neglect. For example, some centrist French politicians set to contest next year’s presidential elections, such as Valérié Pécresse (Les Republicaines), Arnaud Montebourg (ex-Socialist) and even Michel Barnier, the combative Brexit negotiator, have begun to show their concern for what they now call French “legal sovereignty”, with some of them, including surprisingly the latter, demanding a national referendum to establish once and for all the supremacy of French law over European law.

As I write, the ECJ has come out with a judgment imposing a daily fine of one million euros on Poland for failing to abolish the chamber of its Supreme Court that was legally created to oversee the Polish judicial system with the intention, it seems, of subjecting it to greater political control. (Poland has already indicated its readiness to abolish that chamber by the end of the year). Together with another fine of 500,000 euros per day, previously imposed for continuing to operate a particularly polluting low-quality coal mine, these penalties amount to half a billion euros per year. As enormous as this amount may seem, it is miniscule compared to the 36 billion euros that Poland should get from the recovery fund. Evidently, its disbursement is being withheld by the Commission under pressure from the European Parliament so far without a formal explanation. Whether this kind of ruthless political game-playing will bring about the desired regime change is by no means assured, however.

The first line of the Polish anthem – “Jeszcze Polska nie zginęła” – translates as “Poland is not yet lost”; it expresses a vigorous national gusto to fight the battle to the end, even if it may be lost and against all favourable odds, in defence of national honour. Partly because of this, a political settlement seems possible, and perhaps the one million euro fine is just the last hurrah of a Court that hopes to be sidelined by politicians who might think twice about another national withdrawal from the European Union. (German public opinion is convinced that Poland will give in, at a price like everyone else).

It is rumoured that Donald Tusk, who has recently put himself forward as the Polish opposition’s Spitzenkandidaten [leading candidate] for the 2023 general election, has been trying behind the scenes – and obtained confirmation from the Commission – to have the first instalment of Poland’s recovery fund allocation disbursed soon, fearing that failure to do so will probably benefit not him, but the Kaczyński government.

Wolfgang Streeck

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MPIfG/Marcus Simaitis

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1 Comment

  1. By its own rules the EU would not qualify to become a member of the EU because of democratic deficit. Legitimate democratic decisions of member states are only allowed when following the “consensus”. If not they are under attack. It is clear that the EU is the enemy of its member states, big or small.

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