[jollybean]

Very sympathetic to that and it's all disconcerting, but

1) the 'Supreme / Constitutional Court' issue is not nearly as 'one sided'. There were terrible shenanigans played by 'the other side' prior to their departure, which originated that crisis. While I have little faith in PiS, they had legitimate concerns as least to provide cover for some of their own actions.

and item 4) "It defies EU who says member countries must have EU law supremacy" - sorry to burst your bubble but that is reality. There is no treaty or law that gives ECJ 'Supremacy'. The ECJ in 1964 [1] made a ruling on their own jurisdiction and 'declared supremacy'. There is no legislative or treaty basis for quite the authority they assigned to themselves. Some local courts in the EU (i.e. France) have started to defer to the ruling, therefore legitimizing it, but it's still a 'Giant Problem' in the legal foundation of the EU. It was a big 'non populist' issue for Brexit, not really talked about in the media because regular citizens don't care but it was definitely an issue among the elites, and, it's still a contentious issue in Germany (and other places), where the Supremacy of ECJ is still not effectively recognized and it's a 'grey area'.

But yes, it's a serious problem overall, we can agree.

[1] https://en.wikipedia.org/wiki/Primacy_of_European_Union_law

[scotty79]

1) However shinenigans you mention were executed in accordance with the law but PiS government violated the law staffing consitutional court, then retroactively changed the law to make what they did barely legal.

[jollybean]

"However shinenigans you mention were executed in accordance with the law "

That's disputed, which is the point.

But it's clear they were politically motivated actions to stack the Supreme Court with an ultramajority of Judges of their own liking. Just as PiS did after the fact.

Opening that rabbit hole requires some nuance and objectivity, it's not nearly as one sided as it's presented in some media.

[scotty79]

Good overwiew is here https://en.m.wikipedia.org/wiki/2015_Polish_Constitutional_C...

Using words like 'disputed' and talking about previous govenrment shinenigans being responsible in any way for the current state of affairs is true 'false equivalence'.

[jollybean]

The previous government is definitely responsible for initiating illegal maneuvers leading to a constitutional crisis related to Judicial appointments.

That doesn't say anything about what the current government has done, or is doing, but contrary to your statement, it's irresponsible not to look at the Judicial crisis outside the context in which it was created, especially in the popular press.

[garaetjjte]

>There were terrible shenanigans played by 'the other side' prior to their departure, which originated that crisis.

How that's related to legality of their own actions? Obvious solution was to reselect 2 judges who were selected illegally by previous parliament, but they willfully reselected all 5 including these chosen correctly previously. This itself was decided by court (K 34/15), but they just ignored that ruling.

[DominikD]

Both-Sides-Ism is such a tiresome stance. Yes, PO fucked up on their way out but that in no way justifies PiS actions, not does it even explain them. They'd dismantle democracy with or without PO's unlawful judgment. It's dishonest to claim otherwise.

[petre]

> There is no treaty or law that gives ECJ 'Supremacy'

Our former head of the Constitutional Court says otherwise, that through ratification of the EU Treaty of Lisbon we have accepted that ECJ decisions and EU law have primacy over national law.

[Dma54rhs]

French themselves have never accepted it and have rulings about their law being superior since 90's. They should change their constitution but they won't.

[jollybean]

Ask yourself the question:

If a bunch of nations are going to get into a kind of Federal Union, and have a 'court' of some kind, wouldn't it be extremely prudent to parameterize what exactly those authorities are?

If you were the PM/Pres or Supreme Court Judge of any country, wouldn't you think it would be the most obvious and important thing to make it very clear and spelled out in law and treaty?

If the framers of the EU actually wanted to hand over 'Judicial Supremacy' to the ECJ, would they, you know actually write that down?

And absence of it being clear, why on god's green earth would nations hand over a fundamental right, one of the pillars of Liberal Democracy, over to a different institution.

Any and all 'decisions' made otherwise, are hugely indirect and speculative i.e. "Well, we signed treaties with the EU after the ECJ declared Supremacy, therefore, they have Supremacy' is still very indirect.

It's one of the more mind-boggling aspects of EU governance, and if you start to take a slightly cynical look at it, it doesn't look good.

The most pragmatic reason for why the ECJ was never explicitly given power was because: it would be illegal, it would cause major uproar in nation states, it would never pass. So what they did was 'allowed' the ECJ to make a little ruling claiming authority, and then as generations go by, as local courts pile on the deferring agreements, it just 'becomes a reality'.

That's a big speculation of course, but there's just no logic at all for nations handing over Judicial authority without it being fairly clear.

If they were 'nitpicking' at 'some narrow issue' - then fine. There is always ambiguity. But this is not that, it's more fundamental.

It's truly bizarre.

And FYI this is not a resolved issue (See Germany: [1]) and there's still a lot going on.

Also worth a glance [2]

In terms of PiS shenanigans, nuance does matter, I don't think we can just be populist and say 'oh they rejected ECJ Supremacy which is ridiculous and evil' kind of thing. All of these issues are a bit tricky.

I think a lot of people in Europe just think that the ECJ naturally has Supremacy, just like a regular Supreme Court, because that's what was agreed to and Poland is 'off their rocker' - like a US State ignoring a US Supreme Curt ruling. It's not the case though. People would be very surprised at the odd reality.

[1] https://www.politico.eu/article/commission-sues-germany-esca...

[2] https://www.chathamhouse.org/2021/10/law-tool-eu-integration...

[petre]

I don't know about the woulds or would nots, I'm not an expert in constitutional law or international treaties. The former head of the CC is the former. I listen to what he has to say. It is what it is. What I can tell you is that the current situation suits me because there are mechanisms in place that make it considerably harder for local politicians to tighten their grip on power and turn my country into a dictatorship again. I will never support eurosceptic parties precisely because of what happened in Poland and Hungary, among other issues like Holocaust denial.

[jollybean]

It's fine that it 'suits you' but that's not what it's about.

If there is no treaty validating ECJ Supremacy, then that's it. Even a 'statement' or 'interpretation' by an Judge or Expert will be called into question.

Also - you may despair in the short run for the authoritative nature of 'Hungary' but there is a much bigger issue and that is the consolidation of power at the EU level.

Hungary has elections for it's leaders.

The EU does not.

You did not vote for Ursula Von Der Leyen. She was not a candidate, and was totally unknown outside Germany before the election. She was not vetted. She had little public history. Voters did not select her.

She was chosen in a backroom deal: "Here is your new President. We selected her for you. You will find about her platform, later, we hope you like it because obviously you didn't vote for it". Ursula von der Layen layed out her vision for EU long after voters even knew who she was.

The EU Treaties only in 2007 even require the selection of the Pres. to even barely take into consideration the 'recommendation' of MEPs, even then, they have no power. MEPs cannot introduce legislation or sanction leaders.

The EU is the least democratic 'layer' of European governance, combined with the fact that it is at the 'top' and sometimes has the most authority, is a pretty scary thing in terms of the balance of power.

So the EU is 'good for dealing with PiS' yes, probably. But there are other, broader issue.

[petre]

That's how the EU works. You vote for a political direction by choosing between EU party groups. The EUCO defines priorities and the political direction of the EU, not the head of the EC. The EPP which Von Der Leyen is part of won the most seats in the EP, David Maria Sassoli is part of the S&D which has the second most seats in the EP and Charles Michel is part of Renew which has the third most seats in the EP. The comissioners are also part of different other EP groups, yet they all work together. It's somehow similar to the UK where you don't vote for Boris Johnson, but for the Conservative Party. The difference is that the EU is almost always led by a coalition, not a single party.

In Russia people vote for the president, but that does not matter much - what matters is who owns the press and counts the votes. Which is exactly what PiS and Fidesz did: they owned the press. And PiS also messed withe the judges and quite openly admitted to having bough spyware which was used to spy on the opposition. That's the difference between the EU, Poland and Hungary.

[raverbashing]

These are all valid considerations, but I think you're overestimating the level of equivalent judicial the USSC has for example

> wouldn't it be extremely prudent to parameterize what exactly those authorities are?

TFEU

The ECJ decisions are actually more like recommendations on how the local courts should act.

Countries that don't follow the rulings can't complain if they're suspended from EU resources and mechanisms while that is not solved, like having their exports blocked, be removed from Schengen, etc. (And if they don't like it they're free to complain to the walls since they don't recognize the ECJ...)

[jollybean]

That's not it though.

ECJ rulings are the law of the land as far as they see it, not a 'recommendation'.

There are no rules around sanctions etc. for countries that don't 'comply'.

It's just 'make it up as they go along'.

The problem is: there is no treaty basis for ECJ Supremacy. By opening that can of worms, the EU may find themselves with a 'big losing hand' and more affirmatively lose their power.

As I pointed out in the previous comments, the issue is unsettled even in Germany.