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PostPoland, Hungary, and EU vs National Law (Tom Hashimoto, -UK, 10/11/21 7:58 am)
It is pity that I couldn't catch up with Patrick Mears during his visit to Warsaw. (I am still in Vilnius.)
Re Poland/Hungary vs the EU, the disagreement goes back for some time. The Polish Constitutional Tribunal already found the European Arrest Warrant Framework unconstitutional back in 2005, as the latter prohibits the state to "give up" its own citizens. In another case (K18/04, 11.05.2005), "the Court reached the conclusion that the Constitution was interpreted in a manner sympathetic to EU law, but '[i]n no event may it lead to results contradicting the explicit wording of constitutional norms'" (Golecki, 2018 "Towards adverse spillover effect? The judicialization of the EU and the EU and the changing nature of Judicial governance after enlargement," in Hashimoto & Rhimes (eds.) Reviewing European Union Accession. Leiden/Boston: Brill (sorry for quoting from my edited volume!).
Similarly, the German Federal Constitutional Court (BVerfG, 2 BvE 2/08) expressed that "The primacy of Union and Community law over national law is still not explicitly regulated. (par. 33) / The obligation under European law to respect the constituent power of the Member States as the masters of the Treaties corresponds to the non-transferable identity of the constitution (Article 79.3 of the Basic Law), which is not open to integration in this respect. Within the boundaries of its competences, the Federal Constitutional Court must review, where necessary, whether these principles are adhered to." (par. 235)' (ibid.)
Hungary, on the other hand, was interested in whether the implemented EU law is compatible with their national constitutional order, while the Czech court is interested in "cooperation," stating that (Pl. us 29/09) "there would be a breach of the Czech Constitution if, on the basis of a transfer of powers, an international organization could continue to change its powers at will, and independently of its members, i.r. if a constitutional competence (competence-competence) were transferred to it" (ibid.).
Of course, because of the politicisation of these courts in Poland and Hungary (or the eminent threats to become politicised), the EU (and Commission in particular) reminds the Member States of the supremacy of EU law based on Van Gend en Loos and Costa v. ENEL cases at the ECJ (today, CJEU). At the same time, with the failed attempt to introduce the so-called "constitutional treaty," it can be argued that it is precisely the sovereignty of the Member States which gives legal competence to the European organisations.
What we have is not the constitutional crisis in the EU. It is a constitutional crisis in Poland and in Hungary, in which the EU has a stake. If we really want this to end, in my mind, we must ask (1) why democracy is "slipping away" in these countries, (2) why we cannot stop it or slow it down, and (3) why we failed to attract enough support for the constitutional treaty (in France). Otherwise, it would look like the "knowledgable" West tells the "lagging" East what to do (without they themselves reflecting on their own wrongdoings). This is the contrast/dichotomy these populists feed on.
JE comments: Tom, dziękuję bardzo. I know you've been in Lithuania in recent weeks, but do you have a sense of the "mood " in Warsaw regarding the recent nose-thumbing at the EU? Could we even call it such (a nose-thumbing)? My sense is that the political divisions in Poland closely mirror those in the US: an immense gulf between city and countryside, proponents of cosmopolitanism and globalism vs traditionalists and religious conservatives. The all-powerful influence of the (single, Catholic) Church would be the major difference with the US.