AMAC Exclusive – By Daniel Roman
It is not just the United States where constitutional rights are at stake in the face of federal power grabs through measures like Democrats’ “For the People Act,” or H.R. 1. Just as Democrats in the United States wish for the federal government to take control of state elections, the elites who run the European Union are seeking to take control of the judiciaries of member states and ensure that they serve Brussels and European law, rather than the law of their own nations. This has culminated in a giant confrontation with Poland. The conflict has implications not just for all other E.U. member states, but for the principle of national sovereignty everywhere.
At the heart of the matter is a ruling by the highest Polish court that E.U. membership cannot supersede the duty of Polish judges to uphold the Polish Constitution. This was not, despite alarmist reporting in the New York Times (which has a vendetta against Poland and Hungary) a declaration that E.U. law did not apply in Poland. The Polish court explicitly said otherwise. It was rather a declaration that the Polish Constitution itself could not be in violation of E.U. law, and hence Polish judges could not cite European Law to make rulings contrary to the Polish Constitution.
In other words, it was a declaration that Poland remains a sovereign nation, governed by a constitution that is the supreme law of the land.
This was still too much for Brussels, where the Chairwoman of the European Commission, the equivalent of the E.U.’s cabinet, Ursula Van Der Leyen, convened a star chamber where she interrogated the Polish Prime Minister, threatening him with kicking Poland out of the E.U. The European judicial system has also begun fining Poland one million Euros a day. More damagingly, Poland’s share of the European COVID Relief fund is being held up by Brussels. A cynic might, not without reason, view these actions by the E.U. as an effort to bring down the current Polish government. The ruling conservative faction’s narrow Parliamentary majority is both dependent on the use of those funds for a “New Polish Deal” and for a major effort to strengthen the Polish military with an eye toward countering Russia. Blocking the latter would nicely serve to place Warsaw in violation of its NATO commitments, ironically the first nation to fail to meet its spending targets by external sabotage rather than through internal cheapness.
What precisely is this dispute about and why does it matter? Ostensibly, the basis for the E.U. action relates to requirements in E.U. treaties that member states maintain a “separation of powers” within their governments, thereby ensuring “a rule of law.” On paper, such a basic requirement makes sense and it has its counterpart in the U.S. Constitution’s requirements that states have a republican form of government.
In the case of Poland, the EU is alleging a violation of this separation of powers principle. And yet, Poland has an elected government responsible to an elected parliament, appointed by an elected President. There is a Constitutional court that is far from a rubber stamp, split on the ruling in question which so offended the E.U. What then is the allegation?
When the current government of Poland took power in 2015, they found the situation which confronted virtually all outsiders who have come to power in post-Communist states. The country’s institutions had not developed organically. Rather, what courts existed were often filled with old-line Communists who obstructed the new governments and protected their old comrades. If the new governments attacked and purged those courts or created new ones, as they often did, then post-Communist leaders had almost no choice but to fill them with politically loyal judges of their own. The result was a split among Eastern European countries. In some, like Romania, Bulgaria, and Serbia, the courts and media remained in the hands of former Communists. But even where the Communists were ousted from positions of power, those posts were then handed to cronies of whoever the government of the day happened to be. The result was an aggressive ping-ponging of power. Imagine a situation where Democrats’ dream of court packing was realized, and every president gave themselves a majority on the court. George W. Bush appointed 5 judges, Obama appointed 7, and Donald Trump appointed 9.
The Polish government in 2015 could have continued this approach, and allegations say they did. They in fact did not. Rather than continue to expand the Constitutional Tribunal of the Supreme Court until its membership included half the Warsaw Bar, the government instead started from scratch, capping the Tribunal’s size and electing new members by proportional representation within the elected Parliament of 2015. The result of this move was that the ruling party, the Law and Justice Party, would not make 100% of appointments, as had been the norm in so many other Eastern European states. Did the move nonetheless advantage them? Yes, but the important point is all other previous ruling parties had taken 100% of appointments, and the Law and Justice Party had taken only 60%, in trying to restore some sense of legitimacy and stability to the Court.
This, however, gave the European Union a chance to pounce. Because the European Union, which apparently felt that, while adding judges to existing courts after every election did not undermine the rule of law or judicial independence, creating a new “chamber” did. According to the E.U., any new court created by the legislative branch clearly “subordinated” the judicial branch such that there was “no longer a separation of powers.” Consequently, Poland’s new court was “not a court” and separation of powers did not exist.
Whether the new chamber is friendly to the government in power or not is irrelevant here. In effect, the E.U. is asserting two things: first, that any effort by any elected government to alter the manner of appointments to courts or their structure is subject to E.U. approval. Second, that the E.U. has the right to use this power subjectively based on whether or not Brussels has a favorable view of the government trying to make the change. For example, the E.U. had no issue when Tony Blair created an entirely new British Supreme Court out of whole cloth. Their problem then is not with the actions the Poles are taking, but with the particular Polish government which is taking them.
The effect of this assertion by the E.U. would be to require every member state to seek the approval of the E.U. before making any changes whatsoever to the government structure of their own country. Even retirement ages could run afoul of Brussels if the E.U. decided the motivation was to create vacancies for partisan court picks. Even a mere allegation of such impropriety would suffice as justification for the E.U. asserting their primacy over a country’s national government under this logic.
That is the basis of the Polish ruling. The Polish Prime Minister asked the Polish court not whether the changes he made were right, but whether or not in the eyes of Polish law, the Polish government could make laws without E.U. approval. What the court said was yes. Poland did take on obligations when it joined the E.U., but it did not give up its sovereignty.
The principle the Poles are standing on is an important one, and one on which almost every E.U. member has an interest in defending. Legally, they are almost certainly in the right. But neither entirely matters because the European Union runs on power, and the fear of setting a precedent of this power being used against you depends on believing that is a possibility. But that possibility is not one that the Dutch or Belgian electorates, who are pushing most vigorously for infringement proceedings, fear. It is also not a possibility feared by the Irish, who resent Warsaw’s closeness with London, or by the French, who, despite criticism on the right, see the E.U. as Macron’s personal playground. Rather, the voters of those countries resent what they see as European money, their taxes, going to support Polish policies they do not approve of, especially on abortion and gay rights, and wish to see the Poles punished. As the E.U. does not allow the discipline of member states for policy choices other states don’t like, the Commission has invented this “rule of law” issue as pretext to give those “woke” voters in Western Europe what they think they want, while using the dispute as a cover for a massive power grab.
If Western European voters care about gays and abortion and think that is what the E.U. dispute with Poland is about, the reality is that those who run the E.U. could care less. What they care about and have always cared about is their own power, and if they can create a precedent that the E.U. must sign off on any legal changes to governance in any member state, then someone like Macron can safely leave the French Presidency in the hands of a crony in order to make himself President of Europe.
Both the Polish opposition and Western European liberals are playing the role of useful idiots in this power grab by Macron and a cabal of Dutch, Belgian and German politicians to make the E.U. all-powerful under their control. So too is the United States, which seems to have been won over to Macron & Co’s arguments that this entire dispute is about Poland turning its back on “Western Democracy”, and by implication the West, and that any “united front” against Russia or China with Europe depends on bringing Poland to heel and preferably removing its government. It is clear why Biden’s liberal staffers may believe this. Their liberal counterparts in Europe have also been duped. But they are being used by those who care little about liberalism, the rule of law, or – given Nordstream 2 and other deals – standing up to Russia and China.
Poland’s fight is about sovereignty and basic principles of self-government. It is a tragedy so many have fallen for the E.U.’s version.
Daniel Roman is the pen name of a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics.