Armin

Delighted to debut in @Weltwoche with this piece about Donald Tusk’s EU-backed constitutional coup. In it, I explain that even though, at face value, this might seem like little more than a showdown between the government and opposition over control of the country’s highest court, it is actually part of a much larger power struggle within the EU establishment. At its core, this is a battle over sovereignty in its most fundamental form: which legal order should prevail, the Polish constitution or EU law, when the two collide? In the past, the Tribunal has argued that the final word lies with the Polish constitution, not EU law — something Brussels has never forgiven it for. The supremacy of EU law over national law does not exist in any treaties; rather, it was created by the EU judiciary through a ruling made by the European Court of Justice (ECJ) known as Costa v ENEL in 1964. Since then, it has become the engine of EU “integration by law”: by constantly creating “laws” through its rulings, almost always in favor of “more Europe”, the ECJ has effectively become the bloc’s most important legislative and, indeed, constitution-writing body, thus hollowing out from above of national constitutional and legal systems. Alec Stone Sweet, an international-law expert, has termed this a “juridical coup d’état”. A national constitutional court that rejects this principle represents an existential threat to Brussels. This is the real reason the EU was so adamantly opposed to Poland under the previous national-conservative government (and to Orbán’s Hungary for the same reason). This is ultimately what Brussels and Tusk refer to when they accuse the previous government, and the Tribunal itself, of having violated the rule of law. What they mean is that they dared to challenge the rule of Brussels’s law. This is the law Tusk wants to restore.