A More Complex Union
How will the EU react to the Polish Challenge? A Historical Perspective
On 7 October 2021 the Polish Constitutional Tribunal controversially issued a judgment (K 3/21) that rejected the primacy of the European law and key tenets of European primary law (Articles 1, 2, 4(3) and 19(1) TEU). There is little doubt that the judgment constitutes a serious attack on a core feature of the EU, namely its uniquely developed legal order. However, at the same time it is also clear that the Polish attack on EU law is merely a side-effect of a broader dismantlement of Polish democracy that involves the current PiS government increasingly taking control over Polish media and now also the judiciary. Because the EU requires member states to have independent judiciaries and cooperate with the CJEU in the European legal order, the Polish government’s attempt to subjugate its judiciary inadvertently runs counter to its obligations as an EU member states. Considering the broader situation in Poland, the claim of the Polish government that the Constitutional Tribunal’s judgment is comparable with other inter-court debates on the relationship between national constitutions and the European legal order is clearly false and an attempt to cover up the real issues at stake.
In this blog, I will not deal with these crucial domestic aspects of the Polish crisis, however. Instead, I would like to provide some historical context that can help understand how the EU may react to the Polish challenge. Based on the new legal history of European integration that has come out over the last decade, I will offer a different interpretation of the role of law in the EU than the one typically offered by legal scholarship. The central conclusion is that there is an unresolved tension in the relationship between law and politics in the EU that will most likely shape the Union’s response to the Polish crisis. To conclude, I will offer several alternative scenarios of how the EU may react to the Polish crisis. So, what can history teach us?
EU constitutionalism was never fully accepted
There is no doubt that the new legal history of the EU revises the standard view of how European law has developed since the 1960s. The mainstream interpretation promoted by both the European institutions and most European law scholars is that European Court of Justice (ECJ) constitutionalized the Treaties of Rome and created a constitutional (and perhaps even proto-federal) European legal order, which is now accepted by the member states and constitute the very foundation of the EU. The new legal history of the EU tells a different story. It argues that European constitutionalism was never fully accepted by the member states.
Starting in 1963-1964, the ECJ launched the twin doctrines of direct effect and primacy as part of a new revolutionary constitutional interpretation of European law. The twin doctrines changed the original design of the Treaties of Rome, where the Council of Ministers was supposed to flesh out the primary law of the European Communities (EC) in subordinate legislation. And perhaps most controversially, the doctrines dictated how the member states were supposed to receive important parts of European law, thereby sidestepping the constitutional clauses of the member states on how to receive international (read European) law. The ECJ would in the following decades develop what most EU lawyers today characterize as a proto-federal legal order of a constitutional nature, expanding the reach of European law into new areas such as fundamental rights, the external competences of the EC as well as consolidating the four freedoms defined in the Treaties of Rome. In the last half of the 1980s, the ECJ as well as individual judges would become quite explicit about the constitutional nature of the legal order the Court had constructed, mirroring a new academic trend among European law scholars led by Eric Stein and Joseph H. H. Weiler that argued that the ECJ had indeed constitutionalized the Treaties of Rome.
But why did the member states not intervene? They had originally based the EC on international treaties and there had never been a consensus in favor of placing the Community on a constitutional basis, nor to federalize the EC. Attempts to create a Federal Europe had not succeeded in 1949 in the framework of the Council of Europe nor in 1953-54 with the failed treaties of the European Defense Community and European Political Community. As a result, the legal revolution was highly controversial in most member states in the mid-1960s. However, when France finally attempted to clip the wings of the ECJ through reform in the late 1960s, the Netherlands and Luxembourg defended the Court because they now appreciated the advantages and protection that a strong legal order offered smaller states. In the coming decades, discussions of the Council of Ministers on potential ECJ reform always ended in a complete deadlock. There was no consensus to curb the ECJ and likewise no agreement to codify its key doctrines.
At the same time, however, most member states (including the Netherlands for example) systematically contained and limited the concrete effects of ECJ case law at the level of national administrations. Some member states like France and Denmark even tried to minimize the cooperation of national courts with the ECJ by limiting the number of preliminary references sent to Luxembourg. The deadlock in the Council of Ministers meant that the outspoken skepticism and critique of the activities of the ECJ in building a proto-federal European legal order and its constitutional claim mostly came from national courts. Seen from Luxembourg, the worst threat to the room of maneuver of the Court was a possible alliance of national courts of last instance rejecting the key doctrines of European law. However, this was in the end not a very likely scenario because national courts could not realistically stop their participation in the European legal order without directly threatening the EC-membership of their respective country. (For a list of national court judgments that problematize the primacy doctrine consult, see here.)
Enter the Single Market
With the new dynamics of the process of European integration from 1986 onwards, the development of European law was in for a new round of adaptations and conflict. From 1986 the development of the Single European Market became central to all member states and underpinning the new market was of course the constitutional legal order built by the ECJ. This meant that even the member states most critical of the ECJ had de facto to accept the way the European legal order functioned and cooperate with the Luxembourg Court. This can clearly be detected by the new more diligent way national administrations now implemented European legislation and also by the fact that ECJ case law now had to be taken more seriously than before. It also found its expression in a series of judgments by some of the most skeptical courts of last instance in the late 1980s and the 1990s, including the Italian Corte Costituzionale (1989), the French Conseil d’État (1989) and the German Bundesverfassungsgericht (1993) and finally the Danish Højesteret (1998). In these seminal judgments, these supreme and constitutional courts de facto accepted the doctrine of primacy and the need to participate in the European legal order the ECJ had constructed. However, at the same time, they also rejected the ECJ’s claim of constitutional autonomy. Instead, they contended, the EC/EU merely exercised the competences that the member states had delegated to it on basis of national constitutions.
This outright rejection of European constitutionalism was reiterated when the national governments negotiated the Maastricht Treaty (1991) that founded the European Union. Although the Commission under Jacques Delors proposed a new draft treaty that would strengthen the supranational institutions and codify the case law of the ECJ, including primacy, the member states opted for an EU partly based on intergovernmental cooperation (pillars 2 and 3) and placed the European Council at the very heart of the new Union. The EU did thus not develop in a federal direction. It was to be a union dominated by the collective power of national governments. However, at the same time, the proto-federal legal order developed by the ECJ underpinned the central part of the EU, the Single Market, and national courts and administrations had to take the ECJ more serious than they had done before 1986. The creation of the Single Market and the Maastricht Treaty consequently cemented a tension between an EU dominated by the national governments collectively and a functionally working constitutional legal order, which was based on a highly controversial and disputed constitutional claim by the ECJ.
Not the foundation
Fast forward to the present day, it is obvious that the last thirty years have not resolved this tension. The Constitutional Treaty could perhaps have done so by adopting European constitutionalism as a fundamental legitimating principle. However, the Lisbon Treaty was stripped of constitutional language and continued the uneasy co-existence of – on the one side – a powerful European Council that dominates the Union politically and – on the other side – a constitutional legal order with a powerful CJEU built on a claim of constitutional autonomy that has never been accepted nor codified by the member states. It may well be that the constitutional legal order was further developed by new features such as an international legal personality of the EU, the charter of fundamental rights and further emphasis of European rule of law (including an independent judiciary). However, the way the doctrine of primacy finally got recognition from the member states reflected very well its disputed nature. Instead of entering the Lisbon treaty in a place of prominence, it was placed in a common declaration no. 17 attached to the treaty.
What does all this mean for the role of law in European integration? To put it bluntly, the constitutional legal order and European constitutionalism is not the foundation of the EU. It could just as well be argued that the European Council constitute the foundation of the EU due to the direct national legitimacy that national governments can draw on. But perhaps the key lesson that should be noted, however, is that while national courts can dispute the ECJ’s claim for constitutional autonomy, the historical standoff/compromise that developed from 1986 to the early 1990s also made clear that national courts had to participate loyally in the European constitutional legal order by the means of the preliminary reference mechanism and by respecting the primacy of European law to ensure the functioning of the Single European Market.
Placing the judgment of the Constitutional Tribunal of Poland in this historical context is illuminating. What becomes clear is that the Constitutional Tribunal has gone a step further than other national courts since 1990 by implying that Polish courts should not apply European law nor cooperate with the ECJ in the preliminary reference mechanism. If this is actually followed by Polish courts, it implies a serious undermining of the functioning of the Single Market in Poland. Perhaps the Polish government, in order to demolish the independence of its judiciary to move towards an illiberal regime, has (without realizing it?) overstepped an invisible but crucial red line within the EU and now threatens a core interest of all the member states.
The final straw
So, what reactions can be expected by the EU?
It is safe to say that historical analysis demonstrates that in the end it will be the European Council that decides on how to proceed, and that this decision will not be based solely on rule of law arguments.
The analysis above would suggest that Poland has gone too far this time. Not because it has rebelled against the ECJ and the supremacy of European law at a theoretical level, but because it threatens the very functioning of the Single Market by asking national courts not to apply European law. So, while Germany until now has accepted to live with a gradual dismantlement of the democracies of Hungary and Poland in the last decade for economic and geopolitical reasons, we might now expect German industry to tell their government to intervene to save the Single Market. The threat to the Single Market may thus be the final straw when one adds other valid arguments that favor a strong position towards Poland, such as the political difficulty for democratic member states to participate in a transfer Union if some member states dismantle their democracy. If this scenario eventually takes place, we will probably see relatively broad support among the member states for a strong position of the European Commission, holding back EU funds from Poland, until they have backed down and fall into line.
Another scenario could, on the contrary, be that neither Germany, France nor Italy will be interested in challenging Poland on this matter for various political, economic, and geopolitical reasons. Consequently, as Chancellor Merkel has already argued after the recent meeting of the European Council, the road forward is mainly one of political dialogue (with the potential threat of rule of law actions by the European Commission looming in the background). After all, the last time a member states rebelled against core features of the EC/EU, namely the Empty Chair crisis in 1965 where France boycotted the Council of Ministers for six months, was not decided before the ECJ, but through a political compromise negotiated by the member states. Here the joker maybe how forcefully the Northern European small states will rebel against the Franco-German leadership. To these states the prospect of membership of a transfer Union with states using those same funds to dismantle their democracy is simply unacceptable.
The third option preferred by European law scholars and many observers, namely that the European Commission should simply follow European law and force Poland to retreat by holding back EU funds until the rule of law is restored, is probably unrealistic because it assumes that the EU is first and foremost a system of rule of law and not the more complex Union outlined in the analysis above. The European Commission will surely need the backing of the European Council to act tough.
To get an overview of the new legal history of the EU please consult:
Morten Rasmussen, ‘From International Law to a Constitutional Dream? The History of European Law and the European Court of Justice, 1950 to 1993’, in Ignacio de la Racilla Y del Moral and Jorge E. Vinuales (ed.), The Dream of International Courts – A History, (Cambridge: Cambridge University Press, 2019), 287-312.
Morten Rasmussen and Dorte Sindbjerg Martinsen, ‘EU Constitutionalisation revisited: Redressing a central assumption in European Studies’, European Law Journal, 2019, 25, 3, 1-22.
An interesting perspective. However, I wonder whether one does not make it too easy for states like Poland if one makes their acceptance of the primacy of application of EU law dependent on their incorporating it into their statutory law. After all, the case law of the ECJ had existed for about 40 years when Poland joined the EU.