Sovereignty in Europe
SIR – Ursula von der Leyen, the President of the EU Commission, threatens to punish Poland for daring to proclaim that its own laws trump EU laws (report, October 21). She is skating on thin legal ice.
In the 1957 Treaty of Rome, the European Court of Justice is a modest administrative court. But in the battle between EU supra-nationalists and President de Gaulle, ECJ judges took it upon themselves to declare primacy and acted as their own legislature.
There was an attempt to integrate the claim in the Constitutional Treaty of 2004. Article I-6 of the draft European Constitution said: “The constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the member states.” France, the Netherlands and Ireland voted that down, but the draft was later rejigged as the Lisbon Treaty, and Article I-6 found its way into Annex 17, entitled “Declaration concerning primacy”.
When I asked a senior German judge about German law, he said that EU law is supreme. I suggested this was not my reading of the German constitutional court’s judgments on the Maastricht and Lisbon Treaties, in which it concluded that the EU remained “an association of sovereign national states” and not a federal state. If another intergovernmental conference were to be called to create a European democratic polity, Germany’s “accession to a European federal state would require the creation of a new constitution”.
The German court gave priority to protecting the democratic rights of German citizens. So much could not be said of Britain. What is not understood is that Brexit was about taking back control that had been surrendered in the European Communities Act 1972. Until Remainers get to grips with why they lost on June 23 2016, they will wander in their political desert. In contrast, the Polish judges should be congratulated for not signing away their citizens’ rights.
Jonathan Story
Emeritus Professor of International Political Economy Wals-siezenheim, Salzburg, Austria