We were not yet in the then European Community, not with a certain envy. My director, jurist and pioneer Europeanist – when some judges did not distinguish between regulations and directives-, Rafael Illescas, instilled in me what that world that opened up before our eyes meant: a different legal order. In that order, our laws would pass to a different level, below European legislation ;, it would be a transfer of sovereignty and an exercise of renunciation of legal and constitutional nationalism. As a federalist, it didn’t take me much trouble to understand.
The text that we talked and studied painstakingly was the Sentence of the TUE of 1964, Costa against Enel. Since then, and not only because of that ruling, the constant jurisprudence of the TEU has established the primacy of European law and its direct effect. It is a pillar, a keystone, too, with the permission of the architects, without which European political integration is meaningless.
And yet the Constitutional Court of Poland, which joined the European Union in 2004, affirms that Polish law is above European law. It ignores not only European legislation, its jurisprudence, but also the acquis accepted by all the Member States. In fact, when Poland joined, more than ten years had passed since the approval of the Copenhagen Criteria for the accession of any new Member State, which, precisely, commit to that. The German rush.
I never thought the judges posed a threat. Paraphrasing others, today I agree that these threats come with a tie and a gown.
It is not a trivial matter. The Polish State through the muzzle of its Constitutional Court, supported by the totum revolutum of the ultra-nationalist populism of a far-right party called Law and Justice (something like Libertad y Cañas), has shot against the water line of the EU’s political integration project.
I will not elaborate on the known kinship relations and shared strategies of the extreme parties of Poland and Hungary with the Popular Party of Pablo Casado, but I will say that they cause serious unrest on the pro-European and anti-fascist right wing. In any case, a ghost haunts Europe, anti-European ectoplasm and fasciston.
From within the democratic interior of Poland, the opposition is aware of the situation. People mostly support staying in the EU but, at the same time, they support anti-European parties. We are failing in something.
The Polish extremist party in power is accused of colonizing the Constitutional Court, there is talk of false, illegal judges (appointed by the equivalent of our CGPJ), activist, patriotic judges and even coup plotters. Even from a puppet Constitutional Court. And, honestly, it sounds eerily very, very familiar.
In some conversations with my director, Rafael Illescas, we talked about the dangers for Europe in unstable times in the Spanish State; I never thought the judges posed a threat. Paraphrasing others, today I agree that these threats come with a tie and a gown.
It is true that the foundations of the EU have not been shaken for the first time. From the first moment, the United Kingdom was neither loyal nor believer, rather devoted to the Churchill doctrine; their opting out (staying out) were a bad omen and not just for staying out of the euro or Schengen or demanding the British check. May they enjoy it. It is also worth remembering the French filibustering of the chair empty and then the Luxembourg Compromise. State nationalism has always been a voracious enemy of European integration.
In these days of European patriotic fervor and stance against the Polish challenge, memory has suddenly been lost. And not from something very remote. On May 5, 2020, the German Constitutional Court denied the primacy of European law over the European buy-back program. It was not the first constitutional grace of the German judges, perhaps longing for past glories.
It would be equally destructive for the European integration project if we only react against Poland or Hungary when we have nationalist and anti-European justice in the very heart of the EU. Politics played well in the German case, it must be recognized, but not to forget the spinal damage to the south during the 2008 crisis.
Not so far away, the Spanish justice, its Supreme Court, and we will see the steps of the Constitutional Court, questions the European Judicial Area every day. Its patriotic judges ignore the European legal order, its primacy.
Not so far away, the Spanish justice, its Supreme Court, and we will see the steps of the Constitutional Court, questions the European Judicial Area every day. Its patriotic judges ignore the European legal order, its primacy. Spanish judges are supposed to know the law; iura novit curia, said the classics. I refuse to believe that the Spanish Supreme Court judges do not know the law. The Council’s 2002 Framework Decision on Euroorders is very clear. From its cursory reading, without going into Honduras, it is clearly observed that the types of rebellion and sedition are not contemplated in the aforementioned norm. By the way, signed by an unknown person for the Spanish justice and police, M.Rajoy Brey.
Primacy and direct effect. Then? Are not the Spanish judges also giving a pulse, to the Polish, to the pillars of the EU? It would not be good for the European citizenship, almost released, to conclude that there are two different deals in the EU. Poland and Hungary, yes; the others, too.
Europe as we know it, which could be improved, without a doubt, was the result of a great effort shared between brilliant and patriotic politicians of all ideologies. It would be an agony for democracy if today in the EU and in its Member States patriotic judges at the service of anti-European parties put an end to it and, on the way, to democracy. There is experience.