We cannot divide and strengthen ourselves at the same time. Yet, this is what awaits the Union. On the one hand, the eternal battle between the two conceptions of European unity will now be reignited by the ruling of the Polish Constitutional Court on the primacy of national law and the economic sanctions that should follow.
Many Europeans will come to say that although the Polish government was wrong to attack the independence of the judiciary, it is right to argue that the rulings of the European Court of Justice cannot contradict the constitutions of the Member States. This is a matter of national sovereignty, they will explain, while others will argue that the Treaties signed by the Member States give the Court of Justice the power to pronounce the law and that one cannot reject its judgments without putting oneself outside the Union.
In reality, the Court does not have to rule on the constitution of the Member States but on the conformity of their policies with the provisions of the Treaties and with the common policies decided in common. It is therefore with a great deal of bad faith that the sovereigntists will play on the legal complexities to fuel the fury of the forthcoming polemics but, beyond the unfounded fears and false arguments, they will defend the cause of the Europe of the nations against the dynamics of an “ever closer union” as enshrined in the Treaties.
In simple terms, it is the free trade area with common rules, against the march towards a United States of Europe, and so the Polish ruling poorly conceals the two real reasons for the resurgence of this debate. The first is that the more time passes, the more the Court of Justice will have to interpret the Treaties, create case law and play the same role as the US Supreme Court, whose rulings are constantly changing the spirit of the law and the whole country.
It was not Congress but the US Supreme Court that had, for example, legalised abortion, and European conservatives fear like the plague this “government of judges” which could invoke, they say obsessively, the principle of non-discrimination to impose the authorisation of gay marriage in all Member States. Because it defends the rule of law and the freedoms that are consubstantial with it, the judiciary has a very bad press with the conservatives, and the second reason why the Court of Justice is becoming in their eyes an institution to be brought down is that right now everything is changing in the Union.
Neither the Common Defence, nor the strategic autonomy, nor the common research and industrial policies are taboo anymore. The Commission and Parliament’s resolutions refer to them more and more regularly without any controversy, and the fact is that after the common market and the single currency, the Union is taking on a federal direction, of which the powers of the Court of Justice are the most telling symbol.
The “government of judges” is becoming a reality before the evolution of the Treaties and the deployment of a Common Defence. Even at the risk of creating a problem of democratic legitimacy, the Court is asserting itself much faster than the new common policies, and this is obviously what will mobilise more and more hostility against it and give new strength to the idea of a Europe of nations at the very moment when, challenged by China, threatened by Russia and abandoned by the United States, the Union is tending to federalise itself by the sole need of the extension of its common competences.
With one foot on the brake and the other on the accelerator, the Union will make its engine whine and squeak but, if one had to bet, it will not stall for all that.