The decision by Poland's Constitutional Tribunal that the national constitution has primacy over EU law - a decision supported by the PiS government - has sent shockwaves around the EU establishment. The Tribunal decided that Articles 1 and 19 - referring to an 'ever closer union', and the role of the European Court of Justice (ECJ) respectively - were incompatible with the Polish constitution. It has been deemed as a rejection of the bedrock of an expansive/federalist conception of the EU by a member state.
While there's been much discussion of the ruling in itself in Britain and across Europe, what's more interesting is the response of the EU and it's institutions and how this has affected their relationship - in particular, the Commission-Parliament relationship.
The European Parliament, usually the weaker of the three main organs of the bloc (Commission, Council, & the Parliament), announced that it was suing the commission 'over rule of law mechanism' - specifically demanding action over conditionality, which is the deemed failure of a member state to meet EU conditions for funding, or possibly membership.Now, the basis for this lawsuit, the Commission (as the EU's 'executive') deeming Poland to have broken this conditionality, could be seen as having been met, but that's for the ECJ to decide.
What's more interesting here is how the European Parliament, historically (and usually) the most powerless organ of the European Union, is now demanding the Commission respond to its demands - to use more of the Commission's powers in a way many of us could argue was overreach. The Parliament is demanding the Executive practice overreach, or else the ECJ will demand this, or so the threat goes.
We can interpret this many ways but any way we look at it, or highlights the utter hypocrisy that this collision course has revealed about the EU's inner workings, and says more about the EU than it does Poland.
What we could see here is the EP, at long last, doing what all national parliaments in countries the world over do: hold the government to account and, were the majority of the House to agree, (which in this case they have) demand action. The hypocrisy here, however, is twofold. For a start, that the directly elected chamber has to use a lawsuit to hold the governing executive to account on policy, is in itself amazing, and contradictory to any principle of parliamentary democracy. Then, we'd notice the federalist structure many Eurosceptics, The Bruges Group included, feared is slowly becoming a reality, an albeit chaotic one.
Let's accept that the federalist structure the EU has become follows a more American-style structure, and this lawsuit/majority agreement to action against Poland is just political posturing - which it is. However, if this is accepted, it has become clearer and clearer that the concerns Margaret Thatcher raised in her famous speech in Parliament on then-President of the Commission Delors' vision for the EU becoming a set of distant institutions, has become true.
We have reached a point that the Parliament is to the Commission what the US House of Representatives is to the Presidency. But this brings up its own institutional concerns about parliamentary sovereignty and about the rule of law. What exactly is Sassoli playing at?
The Rule of Political Law?
Firstly, this brings into question how the 'rule of law' is being used by the EU's organs. The EU, as shown with this entire debacle, prides itself on the 'Rule of Law' - but hasn't been keen to define it. We note the origins of this Poland dispute were the appointment of judges loyal to Poland's PiS government and how this allegedly conflicted with judicial independence - and hence the rule of law. The irony I could also note is that when it comes to judicial independence, it's the same independence the EU seems to be undermining.
Putting that aside, I think it's worth asking what kind of rule of law the EC is looking for and making it clear - this exists outside of the regular thick and thin dichotomy. Instead of the 'thick' conception being applied to the EU's interpretation, the EC's vision is largely prescriptive and hence politicised interpretation of any political goings-on that challenge their consensus.
The EU would like to think that it expounds a 'thicker', rights-based rule of law, but is in fact more selective than prescriptive with its views on human rights. This interpretation of what counts as the rule of law - in this case a dispute over the appointment of Polish judges - puts a perverse lens on the 'rule of law' and what counts as 'human rights'.
This is the first time an expansive 'rights-based' view of the rule of law has lobbied to expand executive power, or even attempt to force the hand of executive overreach.
Herein lies the hypocrisy of the EU's main organs, where the 'rule of law' is used as a mask for a dastardly federalist power grab - even as the Council (including Chancellor Merkel) and Commission President von der Leyen seek some sort of reconciliation. It brings the internal politics, the colour, to the EU's vision of itself - like the gradualist-fundamentalist divide within the SNP - in which the political leaders not responsible for any diplomacy (ie the EP party leaders and the powerless Parliament's president) are pushing for a harder line, not an EU acting in good faith. The European Parliament is using the theatre of the ECJ to force the Commission's hand in negotiation.
While reality has hit EU leaders and the Commission alike, this lawsuit gives the impression the European Parliament still has its head in the sand.
Teeth that Bite and Parliamentary Sovereignty
Parliamentary sovereignty in the UK was one of the main reasons for many advocating for Brexit during the referendum campaign and indeed during the process - so the fact it is denied to the 27 remaining member states is nothing new. The fact that the European Parliament isn't sovereign and has little to no authority, isn't new either.
What is new is the European Parliament taking on the Commission to fight its corner and come up with its own alternate member state policies. We are close to seeing a sort of shadow commission forming - not one based on political bloc or member state - but based on who can push harder for a federal Europe.
The European Parliament cannot create directives Commissioners have to enforce, they cannot theoretically deny confidence and supply to the Commission and demand a response, powers most parliaments have - but they can vote on directives sent down from the Berlaymont. Their lack of actual legitimacy and power hasn't created a vacuum of sorts - but now it's created a pain in the backside.
There's a reason why this is important. The bone that EP President David Sassoli has to pick with the Commission is that they aren't enforcing the conditionality clause of membership, and hence this ought to relate to Poland's right to receive EU funding (something that's been openly discussed). In other words, the EP and President Sassoli are demanding the Commission follow its own membership directives - but it doesn't have the political teeth to do it on its own. In the UK, when debates occur in Parliament, they largely concerns the government's competence in enforcing existing laws and holding Ministers to account on this. Why does the public see that they have this authority - because these laws were passed by and originated from the British Parliament, and MPs are pressing on their enforcement. That isn't the case for the EP. So now it's demanding it takes a harder line with the Commission - so the European Parliament can see itself as the flag bearer for federalist fantasies.
The hypocrisy from the EU's structures here is that the European Parliament didn't get a vote on this - it was agreed upon by political bloc Presidents (EP party leaders) as if voting were a waste of time and MEPs would've kindly been given the three line whip and voted in favour anyways. Who needs a hemicycle showdown when we can do with a press release?
In conclusion, the European Parliament's impending lawsuit further accentuates federalisation in more ways than one:
●The EU is becoming more federalist, taking a US-style approach to the powers of its institutions - as per Baroness Thatcher's original fears.
●The European Parliament's current case against Poland is shown to be a federalist power grab intending to force the Commission's and even force the Council's hands during ongoing diplomatic negotiations.
●The weak European Parliament's lawsuit here was largely undemocratic and shows us what a Parliament that is far from sovereign looks like.
●Hence, the European Parliament's seemingly bizarre bid to create a 'shadow commission' shows the only way the Parliament grows teeth is through lawsuits
I think that we can conclude here that the fate of Poland's status is in the hands of the ECJ - which might give some thought as to the future of the Northern Ireland Protocol. These events ought to be watched closely, and could determine the British stance on the Northern Ireland Protocol.
