Hardball: Ursula von der Leyen, Valeria Mongelli/Bloomberg/ Getty

October 21, 2021   5 mins

Poland’s relationship with the EU has often been tense, but recently there’s been a turn for the worse. On 7 October, the country’s Supreme Court did something scandalous. It ruled that Poland’s constitution takes precedent over EU law.

Inevitably, Ursula von der Leyen — President of the European Commission — is on the warpath. “This ruling calls into question the foundations of the European Union”, she said, “it is a direct challenge to the unity of the European legal order.” In response, the Commission has threatened to withhold Poland’s share of the EU’s Covid recovery fund.

The Polish Prime Minister, Mateusz Morawiecki, has hit back accusing the Commission of “blackmail”. The Lithuanian President, Gitanas Nauseda, isn’t too happy either. “It is morally endlessly harmful and not right to link law supremacy principles with financial resources”, he said. “Even if it was legally possible”, it would do “unimaginable harm to European Union unity.” In other words: back off, Ursula!

Yet again, the President of the Commission may be threatening more than she can deliver. Under the dreaded Article 7 of the Lisbon Treaty, legal proceedings against Poland would need a four-fifths majority of member states to succeed. If the Eastern Europeans decide to hang together, then the proceedings would fail. 

Let’s not forget what happened the last time Von der Leyen tried to play hardball. It was back in January, when the fiasco of the EU’s vaccine procurement programme was becoming a major embarrassment. The Commission tried to turn the heat onto the hated British by shutting off vaccine exports to the UK. This entailed a move to impose border controls on the island of Ireland — a cunning plan that the Irish government wasn’t consulted on. Inevitably, the whole thing blew up in Von der Leyen’s face and she was lucky to keep her job.   

Thus in regard to Poland, she’d be ill-advised to go nuclear unless she has the full backing of the EU’s most powerful players — the Germans in particular. Of course, this could be the opportunity the Euro-establishment is looking for. The Poles have been acting-up for years and this latest row is the most blatant act of defiance yet. Sooner or later, this needs to be settled.

And yet the Germans might not want to force the issue. For one thing, there is an outside chance that Polexit might actually happen. To lose one member state may be regarded as a misfortune, to lose two looks like carelessness — and for that heads would roll. Though Poland is a net recipient from the EU budget, its departure would be more damaging to the EU than Brexit ever was. 

Polexit would, for example, leave three member states — Estonia, Latvia and Lithuania — physically disconnected from the rest of the EU. Poland is also a bulwark against the expansion of Russian influence and indeed Russia itself. Without the Poles, the idea of a European Army becomes even more pointless than it is already — which won’t please Emmanuel Macron.

Then there’s the nightmare scenario, which is that Poland becomes a corridor for illegal immigration into the EU. Poland’s eastern neighbour, Belarus, is already playing that game — using the flow of migrants as a political weapon. If instead of guarding the EU’s eastern border, as it does now, an alienated Poland serves as a base for people traffickers that would greatly complicate matters. 

Of course, for a friend and neighbour to behave in such a manner would be truly irresponsible. But tell that to the French. At the very least, Poland would use migration as a bargaining chip in any Polexit negotiation with the EU.

The threat of a walk-out isn’t the only reason why Germany won’t want to punish the Poles. Though the Polish court ruling is a massive up yours to the EU, the German Constitutional Court has also asserted the primacy of national law. This was a rather technical case and much more limited in scope than the Polish judgement, but the underlying question is the same: when push-comes-to-shove where does ultimate authority lie — with the nation state or the European Union?

Contrary to Eurosceptic fears and Europhilic dreams, that’s not quite as settled as it might appear.  Sure enough, the supremacy of EU law has been established by the rulings of the European Court of Justice. However, as Stefan Auer and Nicole Scicluna point out in an article for Politico, “no such principle was enshrined in the 1957 Treaty of Rome
 or in any subsequent EU treaty”. There was an attempt to incorporate it into the abandoned EU constitution, but it was dropped from the subsequent Lisbon Treaty. 

Looking up from the law books, we should also take the real world into consideration. The fact is that each member of the European Union is a sovereign state, but that the EU itself isn’t. It has acquired some of the qualifying features of sovereignty — like a single currency — but is lacking others. 

Furthermore, each member of the European Union is a democracy, but the same can’t said for the EU. Again it has some of the qualifying features, but others are conspicuously absent. For instance, EU citizens did not vote Von der Leyen into office and they have no right to vote her out. Enough said. 

European liberals support the EU’s actions against Poland and Hungary, because they see the governments of those countries as violating democratic norms. That’s understandable. However, there’s a glaring irony here — which is that the supremacy of EU over national law is based on vesting ultimate power in an entity that is neither a nation nor a democracy. 

Pragmatists within the EU establishment recognise the contradiction. They know that the EU — as distinct from its member states — can never act with legitimate authority unless it becomes truly sovereign and truly democratic. That, however, can only be achieved at the cost of national sovereignty and democracy, for which there is no popular consent. 

The Polish question therefore is just one facet of a much bigger European question — one which the pragmatists would rather not answer. Much better, then, to fudge the smaller question too.

The continued existence of the European Union depends on maintaining the obvious nonsense that EU law is supreme, but that its member states are sovereign. The problem for the pragmatists is that not everyone is willing to play along — and it’s not just the Poles stirring the pot. 

No less an authority than Michel Barnier is pushing back at the assumption of EU supremacy. As a candidate for the French Presidency, he has called for a referendum on the issue of immigration — which he says would act as “constitutional shield” against EU interference. He advances the idea with confidence because he knows just how shaky the authority of the EU really is. France, he believes, must regain its “legal sovereignty in order to no longer be subject to the judgments of the ECJ”. He wouldn’t say that if he didn’t think it was possible. 

Polexit probably won’t happen. But it was never the main threat. The real danger is when mainstream politicians in core countries call the EU’s bluff. I never expected Barnier to be the first, but I’m glad his time with the British wasn’t entirely wasted.

Peter Franklin is Associate Editor of UnHerd. He was previously a policy advisor and speechwriter on environmental and social issues.