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To recapitulate: under current EU doctrine, protecting the rule of law requires in some countries repression of national courts by national governments, while in others it requires their liberation. The German government satisfied the Commission by promising to ‘actively’ discourage anti-European, pro-national tendencies on its highest court, thereby undermining domestic in favour of supranational rule of law; while the Polish government drew the ire of the Commission by encouraging anti-European, pro-national tendencies on the part of its constitutional court, thereby undermining domestic but also European rule of law, as interpreted by the CJEU. Whereas German undermining of domestic rule of law is forgivable because it serves European rule of law, Polish undermining of domestic rule of law is not because it undermines European rule of law.
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In fact, the French political class seems increasingly disillusioned with the preferred German route to ‘Europe’, which it sees less and less as leading toward a ‘European sovereignty’ modelled on the French that can be projected worldwide. Instead the impression is growing that integration by law would end in nothing better than government by bureaucracy supervised by a supranational legal expertocracy – suited perhaps to building an international neoliberal market but unable to found an imperial state capable of acting on a global scale. Indications are that recent political pronunciamientos in the run-up to the French presidential elections on the value of national as distinguished from European sovereignty are related to growing doubts over German-style integration by law.
And there are further signs of fracture. Shortly before the holidays, two weeks after discontinuing the infringement procedure against Germany, the European Commission started several additional such procedures against Poland. At issue were various judgments of the Polish constitutional court that insist on the primacy of Polish constitutional law over European law where in the Treaties member states had not conferred specific competences to the EU and by implication the CJEU. Preparing the decision, von der Leyen was quoted by the EU’s PR office as saying that ‘EU law has priority over national law, including constitutional law’, a principle which according to her ‘had been accepted by all EU member states as members of the European Union’. Rhetoric like this has the potential of waking up hordes of sleeping dogs in national capitals, as it offers a taste of what a prominent, politically unsuspicious German European law specialist – a profession with a deeply rooted déformation professionnelle making it condone even the most daring deployment of law in furtherance of ‘ever closer union’ – has found himself prompted to call a ‘coup d’état from above’, by means of integration by law in its new, extended version.
Even the Frankfurter Allgemeine Zeitung, usually a faithful foot soldier for EU-Europe, took issue with the new infringement procedures against Poland. On December 23 it asked, under the title of ‘Political Justice’, and an extended quote seems justified here: ‘If the Polish constitutional court was in reality as independent as it is supposed to be, what should the Polish government then do against the court decision that is now the occasion for yet another infringement procedure? The government is after all not allowed to dismiss a decision of the constitutional court or to influence its future jurisdiction.’ And further: ‘Basically the EU Commission urges the Polish government to do that for which it rightly criticizes it sharply: to exert political influence on the judiciary, now only in the opposite direction’. It is indicative of the rotten state of the political public in the biggest and most important country of the EU that there is no mention in this comment of the amazing parallels with the infringement procedure against Germany that had been dropped only a few weeks ago, on assurances by the German government to the Commission that it will ‘actively prevent’ another ultra vires verdict of the constitutional court.
