Trouble Ahead

Like an underwater volcano, a big issue has been simmering away for some time and arguably showed its first sign of life with the judgement a few weeks ago of the Polish Supreme Court that Polish law trumps European. The issue is the power and legitimacy of the European Court of Justice.

We are told that, in these days of pooled sovereignty in matters, for example, of trade and defence, the question of national sovereignty is of marginal significance - if not an outdated notion. But here I agree very much with the picture painted by the conservative philosopher John Gray who is now in charge of book reviews in the leftist “The New Statesman” 

Brexit was a revolt against globalisation. Asserting the state against the global market is in Brexit’s DNA. Thatcherites swallowed a mythical picture of the European Union as being hostile to the free market—the same picture that befuddles much of the left.

In reality the EU is now a neoliberal project. Immune to the meddlesome interventions of democratically accountable national governments, a continent-wide single market in labour and goods is hardwired to preclude socialism and undermine social democracy. 

Large numbers of voters in the UK favour nationalising public utilities and firms such as the Tata steel plant while supporting stiffer penalties for law-breakers and strict border controls. “Left-wing” economics and “right wing” policies on crime and immigration are not at odds. Both come from a concern with social cohesion. If there is a centre ground in British politics, this is it.

Old Labour occupied much of this space. But it is almost unthinkable that any senior Labour figure should attempt to do so nowadays. 

Almost a year ago, no less a figure than Perry Anderson trained his large cannon on the technocratic core of the European Union – with a trilogy of essays amounting to a full-size book - starting with a 20,000 word essay entitled The European Coup followed by Ever Closer Union

The second of these looks at the origins and practices of the different institutions within the European Union – arguing powerfully that they breach every principle of the rule of law. A useful summary is here. 

And, this week, another major figure – German Wolfgang Streeck in a short article for Brave New Europe – has applied that general critique to the EU’s handling of the challenge from Hungary and Poland. It’s an explosive article – which starts thus 

Strange things are happening in Brussels, and getting stranger by the day. The European Union (EU), a potential superstate beholden to a staggering democratic deficit, is preparing to punish two of its democratic member states and their elected governments, along with the citizens who elected them, for what it considers a democratic deficit.

For its part, the EU is governed by an unelected technocracy, by a constitution devoid of people and consisting of a series of unintelligible international treaties, by rulings handed down by an international court, the Court of Justice of the European Union (CJEU), as well as by a parliament that is not allowed to legislate and knows no opposition. Moreover, treaties cannot be reviewed in practice and rulings can only be reviewed by the Court itself. 

The current issue is an old one, but it has long been avoided, in the best tradition of the European Union, so as not to wake sleeping dogs. To what extent does “European” law, made by national governments meeting behind closed doors in the European Council and elaborated in the secret chambers of the ECJU, trump national law passed by the democratic member states of the European Union? The answer seems obvious to simple minds unversed in EU affairs: where, and only where, the member states, in accordance with the terms of the Treaties (written with a capital T in Brussels presumably to indicate their sublime nature), have conferred on the EU the right to legislate in a way that is binding on all of them….. 

It was a young Netherlands historian – Luuk van Middelaar (speechwriter for a few tears of the EU’s first elected President von Rompuy) – who let the cat out of the bag in The Passage to Europe (2013) about what he called the “coup” that gave the European Court of Justice its supreme powers in the 1960s. And that was indeed the starting point for Anderson’s essay on The European Coup. Streeck’s article continues - 

Already in the early 1960s the CJEU discovered in the Treaties the general supremacy of EU law over national law. Note at a glance that nothing similar is to be found in the Treaties; one needs to be a member of the Court to observe that supremacy. At first, insofar as the jurisdiction of the European Union was still very limited, nobody seemed to care about this. Subsequently, however, as the European Union set about opening up national economies to the ‘four freedoms’ of the single market and then introducing the common currency, the doctrine of the primacy of European law operated as an effective device for extending the Union’s authority without the need to rewrite the Treaties, especially as this became increasingly difficult with the increase in Member States from six to, pre-Brexit, 28.

What was initially no more than a highly selective upward transfer of national sovereignty gradually became the main institutional driver for what was termed ‘integration by right’, which was carried out by the Union’s central authorities and co-administered by various coalitions of member states and governments. 

Streeck then moves on to make the same point as Albena Azmanova does in last weekend’s Binding the Guardians report which I’ve discussed in the most recent posts – namely that a lot of EU countries are in breach of the rule of law. 

As far as corruption is concerned, Poland is generally considered a clean country (Hungary less so), while countries such as Romania, Bulgaria, Slovenia, Slovakia and Malta are widely known as bastions of business cronyism and venality, not to mention, in some cases, the deep-rooted mistreatment of their minorities.

Indeed, both Slovakia and Malta have recently witnessed the murder of independent journalists, perpetrated by criminal groups connected to their respective government circles, involved in investigations related to cases of high-level corruption. Yet no one threatens to cut off European subsidies to these countries, while the liberal European press carefully refrains from comparing the Polish or Hungarian “rule of law” with those of Slovakia and Malta.

There is reason to believe that this is the case because, unlike Poland and Hungary, both countries pay back by always voting in favour of the European Commission and otherwise keeping their mouths shut. Similarly, political influence over the high courts of a given country is something that EU bodies have good reason not to make too much of a fuss about: where Constitutional Courts exist, they are all without exception and in one way or another politicised. 

Michel Barnier shocked everyone when he put a marker down for French sovereignty which Streeck suggests could help put an end to the relentless push for European integration 

The battle in Poland and Hungary may put an end to the era in which “integration by right”, thanks to its incrementalism, could be treated by increasingly short-sighted national governments with benevolent neglect. For example, some centrist French politicians set to contest next year’s presidential elections, such as Valérié Pécresse (Les Republicaines), Arnaud Montebourg (ex-Socialist) and even Michel Barnier, the combative Brexit negotiator, have begun to show their concern for what they now call French “legal sovereignty”, with some of them, including surprisingly the latter, demanding a national referendum to establish once and for all the supremacy of French law over European law. 

And Streeck concludes with an interesting comment on the real purpose behind the multi billion EC Recovery Fund 

The real purpose of the recovery fund – to keep national elites in power in Eastern Europe committed to the internal market and averse to any kind of alliance with Russia or China – is too sensitive to talk about in public. So it must be shown that money buys something higher than imperial stability: submission to Western European cultural leadership as documented by the selection of leaders to the taste of its elites.

Will Poland and Hungary learn to behave like Romania or Bulgaria, or even like Malta and Slovakia, and thus placate their enemies in Brussels? If they refuse to do so and the CJEU has the last word, another moment of truth may present itself, this time with an Eastern twist. 

Merkel, during her final hours as chancellor, urged the EU to exercise restraint and try a political rather than a legal solution. (Merkel may well have been informed by the United States that it would not look kindly on Poland, its strongest and most loyal anti-Russian ally in Eastern Europe, leaving the EU, where it is fed by the EU so that it can be armed by the US power).

In this context, note that there now seems to be a slow realisation in other member states of the sheer presumptuousness of the EU’s increasingly explicit insistence on the general primacy of its law over that of its member states.