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The law as a tool for EU integration could be ending


Poland is not the only EU member state challenging the supremacy of European law, as historic change is happening in how European integration functions.

The Polish Constitutional Tribunal’s ruling that several articles of the European treaties are incompatible with the Polish constitution is prompting much debate, especially in terms of both the similarities and differences between it and rulings by the German constitutional court which have also challenged the European Court of Justice (ECJ).

Pro-Europeans are keen to draw a sharp distinction between the reasoning deployed by the two courts. They see the Polish court’s challenge as an exceptional case which the European Union (EU) cannot ‘tolerate’ because it would lead to the ‘demolition of the EU’s legal order from within’ and argue the EU must take a tough approach to Poland by re-asserting the supremacy of EU law.

But this view misses a bigger long-term shift in the EU. Both the German and Polish cases illustrate some of the basic conflicts within the EU’s legal system for decades. What is being challenged increasingly openly – even since the UK left the EU – is the idea of the EU as a de facto federation in which non-majoritarian institutions such as the ECJ have final say about the quality of democracy in member states.

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