November 22, 2018
Warsaw submits to ECJ in conflict over supreme court
All eyes in the eurozone are on the conflict between Brussels and Rome, but there is arguably another big tug-of-war about the limits on national parliamentary sovereignty that is just as important and groundbreaking. This is the one pitting Brussels against Warsaw. This week, the Polish government decided to obey an injunction by the European Court of Justice, and to suspend the forced retirement of some of its Supreme Court judges by securing the passage of a new law to that effect.
This does not mean that the conflict over Warsaw's planned judicial reforms is over. The ECJ still has to hand down its final ruling, and the European Commission had requested that Poland drop or modify other parts of the reform. The Commission charges the Law and Justice party with seeking to establish political control over the judiciary to a degree incompatible with the EU’s fundamental values. But the government’s decision to submit to the ECJ's injunction, despite continuing to dispute the validity of the Commission's criticism, means that it is bowing to EU supremacy over an area as essential to Polish statehood - and to the political agenda of Poland’s parliamentary majority - as the functioning of its Supreme Court.
We had already noted that a conflict over the limits of state judicial sovereignty is a classic moment in the formation of a federal power. Warsaw’s submission - or not - to EU authority and the ECJ’s writ would mark an important watershed in the constitutional formation of the EU. After this week’s decision, we know how the chips have fallen. The old pattern continues to hold, in that important crisis moments crucial to the EU’s cohesion and stability lead sooner or later to a strengthening of EU authority over the constituent states and their parliamentary majorities. We note in passing that the groundbreaking character of the conflict over Poland’s judicial reforms, and in particular the ECJ’s role in it, is under-reported in much of the media.
Instead, distinguished columnists like Simon Jenkins in the Guardian today continue to opine that the EU has become too insensitive and brittle – whatever that means - and must quite soon degenerate or disintegrate, as did all earlier attempts at grand continental settlements in European history.
What such analysis misses is the point that, ironically, is perhaps seen most clearly by passionate europhobes. The EU is not a brittle concert of nations, but it is slowly emerging as a federal power. The failure to grasp this fact is the single biggest cause of much flawed analysis and of many political miscalculations that have followed.