The EU is sliding into a United States of Europe

When a proposed constitution for the EU was mooted in 2005, many in the UK and elsewhere in the bloc smelled a rat. This looked like a bid to shoehorn national governments into a nascent United States of Europe. The French and the Dutch agreed: and being constitutionally guaranteed a referendum on the matter, both took the obvious step and voted the scheme down. No matter. As we now know, the proposal was re-packaged in almost the same form as a consolidation measure called the Lisbon Treaty. It is now part of the EU treaty system.

The Cassandras were, of course, absolutely right. The EU was indeed playing a long federalist game. The point is nicely made by a decision of the EU’s Court of Justice this week. It concerns the seemingly dry-as-dust topic of how Poland appoints its Supreme Court judges, but it matters a lot.

Under the Polish constitution, Supreme Court judges are appointed by the president on the nomination of the KRS (the National Judicial Council), a collegiate body predominantly composed of judges. Until 2019 the judicial members of the KRS were elected by the judiciary and unsuccessful candidates had a right of appeal to an administrative court.

Following a judgment by a separate court, the Constitutional Tribunal, that this system was technically unconstitutional, it was changed by the government in 2019.

Under the new dispensation, the judicial members of the KRS are now not to be elected by the judiciary but picked by parliament. Furthermore, its decisions on Supreme Court nominations are made effectively final and unappealable. The EU criticized the reforms, saying that they created a ‘clear risk of a serious breach of the rule of law’.

Five unsuccessful candidates for nomination by the KRS took their case to the Polish Supreme Court, which in turn asked the European Court for its opinion on whether the new arrangements were compatible with EU law. Earlier this week, the European Court expressed the view that — whatever Polish legislation or even the Polish constitution might say — they were not. It effectively told the Polish government and courts to continue to apply the old system of appointment.

Andrzej Duda’s populist Law and Justice government, an administration cordially loathed by the EU and progressive European opinion as a whole, is predictably furious at the decision. The important question, however, is this: in a European Union that supposedly respects member states and their right to maintain their own constitutional arrangements, how did this argument about Polish law come to be decided by European law?