Thread by @KellerZoe

Poland is learning, as Britain did, that the EU will never let its members be sovereign. They must make a fundamental choice between being part of a state-in-the-making and secession

— sum up from Daniel Hannah’s article

telegraph.co.uk/news/2021/10/2…

European nations freed themselves from the medieval Empire by refusing to recognize its “imperium” over them.
‘Rex, superiorem non recognoscens, in regno suo est imperator’.
This the essence of sovereignty, the pillar of the theory of the modern state.

The EU was always about sovereignty. Who gives orders and who takes them. Poland’s leaders are discovering what Cameron discovered when he tried to shore up the legal supremacy of the UK Parliament, namely that Eurocrats are adept at doublethink.

On the one hand, they deride sovereignty as a risible 19th-century hang-up, an empty husk, a myth invoked by nationalist demagogues. On the other, they care very deeply about the EU sovereignty — about the primacy of the EU law over the legal systems of its members.

On October 7, Poland calmly and politely repudiated that principle. Its Constitutional Tribunal determined that, on Polish territory, national law had precedence over rulings by EU institutions.

Poland restated its long-standing interpretation of its constitution. In a 2005 ruling, it had declared that “the Constitution is the supreme law of the Republic in relation to all international agreements binding it, including those on transfer of competence in certain matters”.

In 2005, Poland was a new EU member with a Left-leaning government, so Eurocrats didn’t much mind. Now, it is governed by vinegary conservatives who spent their younger years struggling to throw off rule from Moscow, and who have no intention of being ordered around by the EU.

“This ruling calls into question the foundations of the EU,” fumed Ursula VDL. She is right. The primacy of EU law is what turns a club of nations into a superstate in the making. Take it away, and the EU becomes just another international association like Nato or ASEAN.

The distinction is critical, and is worth pondering. Europhiles often use “sovereignty” as a loose synonym for “power” and argue that, since countries are necessarily constrained by external forces, they cannot be sovereign in any meaningful sense. The only 666

But sovereignty has never implied that. It means having the ultimate right to decide things with no higher arbiter. Nor is sovereignty incompatible with constrains coming from international treaties or international binding arbitrations.

What makes the EU’s treaties different from every other international accord is that they create a new legal system directly binding #on citizens with or without implementing legislation at national level. If there is a conflict, decisions by EU institutions override national.

Why, you d the member countries agree to this surrender? The answer is that they didn’t – at least, not until very recently. The primacy of EU law is not to be found anywhere in the Treaty of Rome.

It was invented by the ECJ in two controversial power-grab rulings in the 1960s – Van Gend en Loos and Costa vs ENEL – establishing that EU rulings were directly binding upon individuals and businesses within the member states, knocking aside any national legal acts.

For a long time, this blatant judicial activism went unacknowledged in the treaties. Only in 2009, in a declaration attached to the Lisbon Treaty, member governments retroactively acknowledged the supremacy of EU law “in accordance with well settled case law of the ECJ”.

Several of their supreme courts had expressed a different understanding. In their eyes, supreme authority came from their constitutions and they, as arbiters of those constitutions, could not derive legitimacy from elsewhere.

Many supreme courts had explicitly affirmed the primacy of their own constitutional orders. France’s Conseil d’Etat had declared that all foreign treaties derived their authority from the constitution and therefore could not be set above it.

The Bundesverfassungsgericht had ruled that nothing could have precedence over German’s Basic Law. The Danish and Italian supreme courts had made equivalent declarations.

The outlier was Britain, which had no written constitution – and, until 1998, no supreme court. In the UK, sovereignty has always been vested in the Crown-in-Parliament. The position was spelt out by A V Dicey in his 1885 book, The Law and the Constitution, still regarded …

… as definitive: “The principle of Parliamentary sovereignty means … that Parliament has the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.”

It was this understanding of the constitution that informed British Eurosceptics from the beginning, going right back to Harold Macmillan’s first application in 1961. Read the debates that surrounded the passage of the 1972 European Communities Bill.

Its opponents — Powell, Benn and everyone in between —objected above all to Art 2 and 3: the clauses that declared EU rules to be supreme over parliamentary law. To the end of his life, Powell argued that amending those clauses would be enough to reconcile him to EU membership.

Precisely the same concern powered the Leave campaign in 2016. In the run-up to the renegotiation, both Boris Johnson and Michael Gove decided that this was the issue which would determine which side they backed.

At first David Cameron sought to accommodate them, exploring the possibility of a Sovereignty Act that would expressly guarantee the supremacy of Parliament over overseas courts and foreign treaties; but Brussels would not countenance the idea.

Cameron then tried something more limited and cosmetic, something the EU might live with, and reportedly sent Oliver Letwin to try to sell it to the two men; but it was plain that the UK would remain subordinate, and they duly came out for Leave.

It”s worth recalling for 2 reasons. First, because Europhile have spent 5 years trying to show that the EU referendum was about economic insecurity or anti-government feeling or racism or anything, indeed, except the restoration of sovereignty summed up in “take back control”.

Second, because the EU’s intransigence is revealing. It might have tried to keep its second greatest financial contributor on board, for example, it might have allowed that, without a written constitution, the UK needed unique safeguards for its parliament.

Had it done so, it would have won over most of the leading figures in Vote Leave and the referendum would have become a formality. But the EU was readier to lose its second largest member than to allow any deviation from federal unification.

If that was its attitude toward the UK, we may be sure that Brussels will seek to crush Poland, a substantial net beneficiary from the budget and a country whose government and population favour continued membership.

Poles will learn, as we did, that the choice is between membership of a EU state-in-the-making, and secession. There is no middle way, no Europe of nations option. We spent half a century trying to find one, and failed. That, in the end, is why we left.