Unlike the German and British courts, the Polish court is populated by party loyalists.

Poland flag

The German constitutional court has never ventured to take such a bold stance as Poland did last week. Years of anti-European rhetoric, on the other hand, have fertilized the ground for the emergence of a splinter jurisdiction in other European nations.

When a colleague from the London Times told me in the early 1990s that Eurosceptics now had victory in their clutches, I was stunned.

Until then, I dismissed Europhobes as the stereotypical British eccentrics with poor teeth and bad smell who should not be taken seriously. But, in the end, it was them who triumphed and established their priorities.

The German constitutional court's judgments on European matters during the last two decades have had a comparable impact. The court has never made an order that is in violation of a European treaty or opposes EU policy. It was the legal discussion, not the punishment, that mattered. In its ruling last year on the ECB's asset acquisition, Karlsruhe (as the German constitutional court is known, after the city in which it is located) launched a notorious attack on the European court of justice for acting outside of its authority, or supra vires. It also established that, despite the fact that member states have given the European Union well defined authorities, sovereignty always and in any event resides with individual nations. The sovereign state, like in the biblical context, has the ability to give and take away.

In its ruling last week, the Polish constitutional court went far beyond its German counterpart. He claimed that several parts of the Polish constitution are incompatible with Art. 1 of the Treaty on European Union, or the EU's foundation clause. The same may be said about Article 19 of the Treaty on European Union, which established the European Court of Justice. If things keep going this way, there's a chance of a legal Polexit. If a member state claims that the European treaties are in violation of its national constitution, it has three options: amend the constitution, persuade other member states to change the treaties, or quit the Union. The EU might even claim that, under international law, this judgment immediately voids Poland's participation pact and, as a result, its membership in the Union.

The German constitutional court plays a little but significant role in all of this. He aided Poland's following efforts by beginning the legal discussion. Readers will recall that the work of the European Union's Court of Justice was pivotal in the Brexit negotiations. If only pro-European British folks had realized that some of those powers might be reclaimed? Despite the Europhobia that led to Brexit, the loud cry for independence that has been heard in Germany and Poland has never been heard in the legal arena in the United Kingdom.

Unlike the German and British courts, the Polish court is populated by party loyalists. The lines [here in English translation ] sound more like a political manifesto than a legal document. Constitutional judges in Germany are likewise chosen by politicians, although they represent a diverse variety of legal perspectives. Anti-European attitudes emerge from inside the legal profession, not from political meddling. Lawyers, like economists, adhere to scholarly schools of thought that support their political beliefs.

Some of the points made during the proceedings in Poland were nearly identical to those heard by the German constitutional court. For example, the city of Karlsruhe has aided in the popularization of legal principles such as ultra vires and the democratic ideal. Which appear to be far more innocuous than they are. According to Karlsruhe, sovereignty can be granted but not shared. As a result, the European Court of Justice cannot declare itself the arbitrator of its own competence. As a result, EU laws cannot supersede national laws in regions outside the agreed-upon perimeter, and it is up to national courts to determine the exact extent of that perimeter. In those clearly delineated areas, like as the single market and trade policy, Karlsruhe acknowledges the primacy of European law. Its responsibilities do not include fiscal and defense policy. As a result, if you want to create a fiscal union or a European army, you can't do it under the current treaty. Unless member states opt to amend the European Treaties and, in the case of Germany and Poland, their respective national constitutions, the next stage of European integration will never see the light. Poland will almost probably be forced to take a step back as a result of the Polish judgment. Polexit, in my opinion, will be a potential but improbable outcome. However, it's important to remember that Brexit began in the same way.

The German form of legal Euroscepticism, on the other hand, has proven to be far more clever and effective. It was able to conjure up legal preconditions out of thin air, enough to sway the negotiation positions of successive German administrations toward the European Union. The Polish judgment, on the other hand, is written as a deliberate provocation that may be utilized by the right-wing Law and Justice party in the run-up to the 2023 elections. Karlsruhe is in no way to blame for what is going on in Poland. However, he is the one who started a discussion that others have been able to control and drive to its logical conclusion.

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