Other than Polexit, the Polish Court defends the Treaties from the forcing of Brussels
We have already dealt with the diatribe on the so-called rule of law : first speaking of the related Regulation ; then explaining how it had come to that ; then another provisional truce ; finally observing the same piracy mechanism in the case of Hungary .
Let's go back to Poland, in the light of a ruling by the Constitutional Court. To which the Warsaw government had asked to rule on the interpretation of the Constitution, after having suffered adverse rulings from the European Court of Justice (CJEU). The sentence does not seem to have already been published and we rely on an oral reading report . Apparently, four articles of the European Treaties are declared contrary to the Polish Constitution .
1 (1 and 2) Tue in conjunction with 4 (3) Tue – the Court seems to deny that among the "competences to achieve their common objectives" that the States have attributed to the Union and, therefore, among the "obligations deriving by the treaties ”or the“ tasks ”of the Union, there are rules in conflict with the Polish Constitution. In other words, Poland cannot have authorized the Union to do things other than what the Polish Constitution provides.
19 (1§2) Yours alone – the Court seems to deny that among “the judicial remedies necessary to ensure effective judicial protection in the fields governed by EU law”, there may be remedies in conflict with the Polish Constitution. Such as the application of rules already superseded by the Polish Parliament or the Polish Constitutional Court. In other words, Poland cannot have authorized the Union to impose to do things other than what the Polish Constitution allows.
On 19 (1§2) Yours and 2 Yours – the Court seems to deny that the “values” on which “the Union is founded” have been attributed the legal capacity to amend the Polish Constitution. As in the part in which it regulates the appointment of judges and the appointment of the local National Council of the Judiciary. In other words, Poland cannot have authorized the Union to regulate justice differently from the Polish Constitution.
In short, the Constitutional Court is actually declaring contrary to the Polish Constitution : NOT four articles of the Treaties … but the interpretation that Brussels and Luxembourg are given of these four articles.
Difference not of goat wool, but capital: if the Court had declared the four articles not applicable, then we would speak of Polexit (the exit of Poland from the EU). But, since the Court has indeed offered a true reading of the four articles, well: there is no Polexit and, indeed, Poland would be defending the treaties. Between the two cases there is all the difference between a war of secession and a war of succession .
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With that in mind, let's read the first reaction of the European Commission . He begins by reaffirming: “Union law has primacy over national law, including constitutional provisions”. Warsaw is as if it had already answered: what right? that of the treaties is fine, not what you invent in Brussels.
The Commission adds that: “all judgments of the CJEU are binding on the authorities of all Member States, including national courts”. But what if the CJEU in Luxembourg invents treaties that do not exist? Warsaw is as if it had already answered: the National Constitutional Court intervenes . Exactly as the German Constitutional Court in Karlsruhe replied on 5 May 2020:
"If the member states were to completely refrain from conducting any type of ultra vires scrutiny, they would grant the EU bodies exclusive authority over the Treaties, even in cases where the EU adopts a legal interpretation that essentially amounts to a modification of the Treaty or an expansion of its competences ".
So too Alessandro Mangia and Todero on Atlantico : "if the Polish judges have claimed the right to evaluate the compatibility of the European legal order with the domestic one, they have affirmed a correct principle that already belongs to the legal culture of all national constitutional courts" . And that's enough.
The Commission concludes: "the rights of Europeans enshrined in the treaties must be protected, regardless of where they live in the EU". But these rights of Europeans can only be those established in the treaties. And where is it that the treaties regulate the procedures for appointing national judges? Warsaw is as if it had already answered: nowhere .
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We will see in another article who could be right and who could be wrong. For the moment, it is enough for us to observe that the political opposition to the Warsaw government is chattering about Polexit : Donald Tusk in particular, a very high federalist poppy and former president of the European Council. He put judges and government all in the same bucket and pronounced: " they want to leave the EU ". Tusk is also president of the EPP and has brought in the responsible justice (a certain Jeroen Lenaers, unknown Dutch MEP): “it is difficult to believe the Polish authorities when they say they do not want to end Poland's accession to the EU. Their actions go in the opposite direction ”. Tusk also took the opportunity to dig into the turmoil, stating that the sentence would have declared "that the EU treaties are not compatible with Polish law". Besides, of course, defining the Court as "illegitimate" and the government as an "autocrat". All duly trumpeted by the Italian press .
Quite the contrary, the enemies of Tusk. Prime Minister Morawiecki : on member states, the EU cannot " impose … legal solutions that are incompatible with their legal system" … where it is obvious that there is talk of new solutions since, if such solutions were old, they would already be in the treaties and it would not be necessary to impose them as they would already have been accepted. Even the tough minister of justice Zbigniew Ziobro aims to defend the country from the diktats of Europe "in matters in which it does not have the power to interfere" … and if it does not have it, it does not.
Sure, Tusk can count on Brussels and the Luxembourg Court, but all he can get out of is a disputed right to impose fines (which would add to the threat of suspending participation in European funds and the non-approval of the Polish Recovery Plan ). Warsaw could react by disapplying different parts of EU legislation, for example on environmental issues. To the point of pushing other Member States (for example Germany, extremely interested in Poland's permanence in the single market and also with a Constitutional Court targeted by Brussels and Luxembourg) to intervene. Plausibly by proposing a new text of the Treaty which, on the mere condition that Poland remains in the single market, frees it from federalist frills.
The post Other than Polexit, the Polish Court defends the Treaties from Brussels' forcing appeared first on Atlantico Quotidiano .
This is a machine translation from Italian language of a post published on Atlantico Quotidiano at the URL http://www.atlanticoquotidiano.it/quotidiano/altro-che-polexit-la-corte-polacca-difende-i-trattati-dalle-forzature-di-bruxelles/ on Tue, 12 Oct 2021 03:58:00 +0000.