Wolfgang Streeck – Waking sleeping dogs

As the possibility of revising the Treaties has stalled, the Commission and Parliament have asserted the right to intervene in the national politics and legal systems of member states.

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

Cross-posted from El Salto

Translation by BRAVE NEW EUROPE

Do you remember the campaign orchestrated by the European Commission (EC) and the European Parliament (EP) to teach Poland respect for the rule of law, with the help of the Court of Justice of the European Union (CJEU), by withholding Poland’s share of von der Leyen’s most precious resource, the Next Generation EU Corona Recovery Fund? It is no coincidence that the legal jargon of the European Union is really difficult to understand for anyone who does not sit on the CJEU, but hard reflection reveals that the rule of law here means two things: the independence of the national judiciary from the national executive and the recognition by both of the supremacy of European law over national law, including constitutional law, and this irrespective of what the former may be, which in case of doubt is a matter for the CJEU and the CJEU alone to determine.

Poland, in Brussels’ view, needs to learn the lesson of the rule of law, and not only because its government has packed its Constitutional Tribunal with judges sympathetic to its majority party. Both the court and the government believe in a narrow interpretation of European legal supremacy rather than the broad interpretation favoured by the EC, the EP and the CJEU. As a result, the Polish Constitutional Court often considers certain, but not all, legal mandates issued by Brussels to be ultra vires, i.e. transgressing the limits of European jurisdiction and thus violating not only Polish law, but also the European Treaties insofar as EU member states have ceded part but not all of their legal powers to the Union under the Treaties.

To make matters worse, and setting alarm bells ringing in Brussels among the good “pro-European” Europeans, it turns out that to legitimise its failure to obey the rule of law as defined by Brussels, the Polish Constitutional Court, supported by its “anti-European” government, is happy to invoke a recent decision of the German Constitutional Court, the Bundesverfassungsgericht (BVG). Although this has long been regarded as a paragon of both political independence and loyalty to the European Union, the BVG had recently concluded that the CJEU had exceeded its powers by holding that it, the German Constitutional Court, had itself breached European law in particular by failing to state loud and clear the general supremacy of European law over national law on a question concerning the powers of the European Central Bank (ECB) to commit national central banks to support certain supranational monetary policies. In haste, the German Constitutional Court apologised, decided not to pursue the matter any further, acknowledged that in this case the ECB had acted within its competence and accepted that it was in any case for the CJEU to determine which competences are covered by the Treaties.

This, however, did not satisfy the European Commission, which, under pressure mainly from German Green MEPs, declared that Germany was in breach of the Treaties, as its Constitutional Court had suggested that the scope of the EU’s power may perhaps have certain limits after all. In order to set an example and show that it meant this, the EC initiated Treaty infringement proceedings against Germany, parallel to the various proceedings initiated against Poland and Hungary, so that everyone would know that invoking the German Constitutional Court would not get its resources from the Next Generation EU Corona Recovery Fund and that in any case Brussels applies its concept of the rule of law equally to rich and poor, big and small, without making any distinction. Infringement proceedings may end up in the European Court of Justice if the country in question fails to convince the Commission that it has mended its ways and that it can reliably guarantee that it will not infringe the law again.

So far, so good. Then, on 2 December last year, a few days before the new German government was sworn in, the European Commission suddenly and unexpectedly dropped its proceedings against Germany without making much noise and, consequently, with hardly any German press taking note of the decision or pretending not to have been aware of it. Germany, according to the Commission’s communiqué, the only official document available to date, had formally recognised “the autonomy, supremacy, effectiveness and uniform applicability of Union law” as well as “the values underpinning the Treaties, in particular the rule of law”. Germany had also “recognised the authority of the Court of Justice of the European Union” and the principle that “the legality of the actions of the organs of the Union […] can be reviewed only by the Court of Justice of the European Union”. And, above all, the German government “undertook to use all the means at its disposal to actively avoid [aktiv zu vermeiden] a repetition of a procedural ultra vires case [eine Wiederholung einer Ultra-vires-Feststellung] in the future, i.e. a denunciation of the excessive scope of the applicability of European law .

It is symptomatic of German policy, and also of European integration today, that the European Commission and the German government managed to shield their agreement on the settlement of the infringement procedure and its terms from public attention. The only response in Germany to this episode was the question put to the government by a member of the Linkspartei in the Bundestag, who asked whether it was true that the government had decided to influence the future jurisdiction of the German Constitutional Court and enquired about the legal means the government believes it has at its disposal to achieve this end; he also asked whether the government considered such influence compatible with the principle of separation of powers and, in general, whether it considered it illegitimate for the German Constitutional Court to review legal acts of the European Court of Justice. These questions have not yet been answered.

Or maybe it is. In June 2020, Andreas Voßkuhle’s long tenure as president of the German Constitutional Court came to a regular end. Voßkuhle, a professor of public law at the University of Freiburg equipped with his own judgement, had been generally regarded as the driving force behind the ultra vires decision taken by the German Constitutional Court. He was replaced, at the proposal of the Bundestag, by Stephan Harbarth, who had been appointed to the Constitutional Court at the end of 2018, taking the position of Voßkuhle’s vice-president. In March 2020, Harbarth made it known that he was confident of becoming his successor. He was elected to the position during the same year, appointed by the Bundespräsident after the end of Voßkuhle’s term of office. Publicly Harbarth was introduced and welcomed as the first practising lawyer to arrive at the German Constitutional Court. Although he had been a partner in a major US-owned law firm since 2006, he had, however, also been a member of the Bundestag between 2009 and 2018 in the ranks of Merkel’s Christian Democrats (CDU), at which point he gave up both his seat and his law firm to join the Constitutional Court.

During his parliamentary term he enjoyed a position of power and influence within the CDU, both in the party and in his parliamentary group, being an active and influential figure, mainly behind the scenes, while remaining active as a partner in his law firm. Harbarth became known primarily as one of the highest paid members of the Bundestag outside of his activity as a member of the Bundestag, reporting at the time of leaving his seat an income of more than 400,000 euros per year (at that time parliamentarians were not required to indicate their income exactly, but simply to place it in discrete ranges of which the figure indicated was the highest). Harbarth’s additional income was intermittently the subject of public debate, because political opponents and journalists ventured that this could possibly be payments for services rendered, given his duties as a parliamentarian.

Whether the German Constitutional Court should stop putting a spanner in the works of the supremacy of European law over national law is not a trivial matter, and everyone obviously expects an experienced politician like Harbarth, a Merkel stalwart and an experienced practising lawyer, to understand this better than an academic who only understands the law. What is at stake here is what has been called “integration through law”, a concept that over time has become, more or less by default, the most important mechanism for achieving the “ever closer union among the peoples of Europe” envisaged in the Treaties. This is because the now 27 member states of the European Union are unlikely to agree unanimously on a revision of the Treaties to extend their power, which some of them would also have to submit for approval by popular vote.

Thus, an alternative route had to be found to undertake the construction of an empire or a supranational state, circumventing the need for formal revision of the Treaties and, in particular, Article 5 of the Treaty on European Union, which states that “the limits of the Union’s competences are governed by the principle of conferral; the use of the Union’s competences is governed by the principles of subsidiarity and proportionality” and that “in accordance with the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties shall remain with the Member States”.

This was originally understood narrowly and specifically, for example with regard to issues such as the regulation of European arrest warrants. However, as political integration stagnated, the European Commission, the European Parliament and the Court of Justice of the European Union began to read a less specific attribution of competences into the general declarations contained in the Treaties about intentions and “values”, such as those committing the European Union to democracy, human rights and the rule of law. According to this criterion, the Commission and the Parliament asserted the right to intervene vigorously in the national policy and legal systems of member states, if both institutions understood that European values were at stake.

On the other hand, should any country object to this on the grounds of defending its own interpretation or national sovereignty, it would be up to the CJEU to decide on the basis of another principle, that of the supremacy of European law, a principle which, incidentally, is not stipulated in the Treaties, but which was postulated long ago by the CJEU itself, at that time confined to the competition law in force in what was then the Common Market. Reformulated in this way, integration through law has become the master key to the EU’s interventions in the national orders of the Member States in order to achieve their adherence to general principles such as democracy and the rule of law, as interpreted by the EU institutions, as well as to achieve their cooperation with European integration, again led by the latter.

How integration through law works can be seen by comparing the cases of Germany and Poland with respect to the rule of law and the relationship of national law to European law. Germany was accused because its constitution allowed the German Constitutional Court such independence as to rule against the national government: in other words, because its government did not prevent the Court from adopting an opinion different from its own, i.e., for upholding the rule of law. Under pressure from Brussels, the German government promised that it would proceed so that the Constitutional Court would henceforth agree with its position, pledging to curtail its independence and thus that of the rule of law, which put an end to the infringement proceedings initiated by the European Commission, which argued that Germany had promised to respect the primacy of European law. Poland, on the other hand, was and is accused – and is already being punished for this – of not allowing its Constitutional Tribunal sufficient independence to rule against the national government, i.e. for curtailing the rule of law, this time, however, because it allows the Polish Constitutional Tribunal to defy the doctrine of the universal supremacy of European law over national law.

As a remedy, Brussels expects Poland’s national government to change the composition of its Constitutional Tribunal so that in future it will rule in favour of the supremacy of European law, in which case it will pass the test of its compliance with the rule of law, which is de facto a test of cooperation for the sake of integration through law. Until the Polish government does so, the EU will withhold the financial aid to which the country is entitled under the Treaties, which means breaking the law in defence of the law: a Notstand [state of necessity] on Carl Schmitt’s (Carl Schmitt was a German jurist, political theorist, and prominent member of the Nazi Party – BNE) model. As a welcome side-effect, this will allow the opposition – led by a Polish prime minister ousted from office for his strict adherence to the EU’s neoliberal economic prescriptions and compensated by his friends in Brussels with the post of one of the five EU presidencies – to claim that by voting for it and thus for the supremacy of European law, Polish citizens will once again benefit from the financial support of the Union. In effect, this turns the battle over the rule of law into an instrument of imperial management by the elites aimed at bringing about regime change at the national level.

To recapitulate what has been said so far, the protection of the rule of law according to EU doctrine requires in some countries the repression of national courts by the respective national governments, while in others it requires their liberation. The German government satisfied the European Commission by promising to “actively” discourage anti-European pro-national tendencies in its Constitutional Court, thereby eroding the national rule of law in favour of the rule of supranational law; the Polish government, for its part, incurred the wrath of the Commission by stimulating anti-European pro-national tendencies within its Constitutional Court, also eroding the national and thus the European rule of law as dictated by the CJEU’s interpretation. While Germany’s erosion of the national rule of law is forgivable because it serves the rule of European law, Poland’s erosion of the national rule of law is not because it erodes the rule of European law at the same time.

How does integration through law fit in with the world-view of the new German government and what are its future prospects for the “European project”? The section on Europe in the coalition agreement, which comes at the end of a really long document, shows the hand of the Greens and their foreign minister, Annalena Baerbock, and calls for nothing less than the convening of a constitutional convention to pave the way for “a European federal state [einen föderalen europäischen Bundesstaat]”. No one in Europe, apart from the German Greens, is really serious about this and Baerbock was informed about it during her inaugural visits to Warsaw and Paris. Baerbock will also have to learn that for Germany integration by law rather than convention is the ideal method for building a European state or empire dominated by Germany: integration that is rule-based rather than politically driven, that proceeds through judicial authority rather than political legitimacy, that is ‘values’ based and derived from norms rather than interests, that is underpinned by judicial authority and expertise, that draws legitimacy from obedience to law rather than political consent, and that is designed and constructed behind closed doors by academically trained specialists located out of sight of politicised citizenries eager to make policy. This model also makes it possible to single out individual countries for corrective punishment, something difficult to do in a constitutional convention. The only problem is that Germany’s indispensable hegemonic co-power, namely France, shows little appreciation for this approach, historically and culturally preferring politics to legalism, discretionary decision-making to rule-bound decision-making, and personal leadership to the impersonal application of legal norms.

Today, the French political class seems increasingly disillusioned with Germany’s preferred way of building “Europe”, which it sees as less and less conducive to a “European sovereignty” modelled on the French model of sovereignty extended to the European level, so that it can be projected on a global scale. On the contrary, there is a growing impression that integration through law via the rule of European law imposed on the rule of national law within European nation-states would at best lead to a government ruled by a bureaucracy supervised by a supranational legal expertise, suitable perhaps for the construction of a neoliberal international market, but incapable of founding an imperial state capable of acting on a global scale. It seems that recent political pronouncements heard in the run-up to the French presidential elections next April on the value of national sovereignty as distinct from European sovereignty are related to the growing doubts raised by integration through law conceived along the lines of the German model.

And there are further signs of fracture. Shortly before the Christmas holidays, two weeks after the closure of the infringement proceedings against Germany, the European Commission started other such proceedings against Poland. At stake were several rulings of the Polish Constitutional Court which insist on the primacy of Polish constitutional law over European law in cases where member states have not conferred specific competences in the relevant treaties on the European Union and thus on the European Court of Justice. In preparing the decision, von der Leyen claimed through the EU’s public relations office that “European Union law takes precedence over national law, including constitutional law”, a principle that in her view “had been accepted by all member states as members of the European Union”. Such rhetoric has the potential to wake hordes of sleeping dogs in national capitals, as it offers the scent of what a prominent German specialist in European law – a profession characterised by a deep-seated déformation professionnelle that makes it condone the boldest deployments of law in the pursuit of “ever closer union” among European peoples, politically above suspicion, has felt compelled to call it a “coup d’état from above” implemented through integration by means of the law in its new, extended version.

Even the Frankfurter Allgemeine Zeitung, usually a dedicated pro-EU activist, strongly disagreed with the new infringement proceedings initiated against Poland by the European Commission. On 23 December this year it addressed the issue under the headline “Political justice” in an article worth quoting in extenso: “If the Polish Constitutional Tribunal were really as independent as it is supposed to be, what should the Polish government do against the court decision that is now the subject of new infringement proceedings? The government, after all, cannot circumvent a decision of the Constitutional Tribunal or influence its future jurisdiction”. And then: “Basically, the European Commission is urging the Polish government to do what it rightly and harshly criticises: exert political influence on the judiciary, only this time in the opposite direction”. It is indicative of the lamentable political state of the citizenship of the largest and most important EU state that no mention is made in this article of the incredible parallels with the infringement proceedings against Germany, which had been dropped only a few weeks earlier, given the German government’s assurances to the European Commission that it will “actively prevent” another verdict on the infringement of the scope of the EU’s legal power by the German Constitutional Court.

Wolfgang Streeck

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MPIfG/Marcus Simaitis

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