Alliances and sovereignty

Joining the EU was the result of exercising sovereignty, not restricting it. If Poland must comply with the judgements of the Court of Justice of the European Union, it is only because it has previously made a sovereign decision to do so – writes Prof. Jacek CZAPUTOWICZ

.International alliances are as old as states themselves. It was already in the 5th century BC that Thucydides described the alliance that was being forged by Athens and Sparta. In the international system made up by sovereign communities countries engage in various forms of cooperation to avoid being dominated by a single hegemonic power. The Cold War gave rise to a bipolar system with countries clustered either around the USA or the USSR. Each one of these counties knew that, if one side won, it would dominate the other, leaving no place for alliances.

There is only one situation where alliances are absent – when one country becomes so powerful that the rest cannot provide a counterweight. This is what happened in ancient times in the Far East when China subordinated the other countries in the region. The case of the Roman Empire was not much different. We may be certain that international alliances will continue to be made in the future precisely in order to minimise the risk of one player totally dominating the rest.

The concept of sovereignty was defined by Jean Bodin. At the outset, its scope was absolute. The sovereign ruler made law, settled disputes, imposed taxes, declared war, had the right to mint coins and even decided about religious matters in line with the principle cuius regio, eius religio. Over time, sovereignty has become the prerogative of the people rather than the ruler. Its substance has also changed, even though its essence is largely the same. This is well illustrated by today’s practice of lawmaking. An exclusive competence of states in the past, it is now shared between member states and the EU. However, Poland is not less sovereign for that than it was before it joined the Community in 2004.

Indeed, joining the EU was the result of exercising sovereignty, not restricting it. If Poland must comply with the judgements of the Court of Justice of the European Union, it is only because it has previously made a sovereign decision to do so. This applies to all member states in equal measure. The principle of sovereignty also entails the possibility to leave the European Union of which the decision made by the British society was a striking example.

But this is not the same as the right to criticise the European Union, such criticism being often justified.

Researchers point out that the EU changes is a way to favour the interests of the countries that have been part of the Community for longer, especially the large ones such as Germany and France. That is because these countries had the biggest impact on the way rules were made. For example, EU voting rules have changed to privilege the largest states, which contradicts the rules existing in other federations (like the German Bundesrat). The economists, on the other hand, say that the adoption of the euro was better for Germany than, for instance, Greece. So it is not true that everyone benefits from EU membership to the same extent.

This raises the question of how much Poland gains by being part of the European Union. We are definitely in a much better situation than if we were outside the EU. For all that, the advantages of our membership may be proportionally smaller compared to those of other countries. There is consensus about the fact that EU cooperation generates a “larger pie,” the disputes being about how that “pie” should be shared. The point is that Poland’s “piece of the pie” may not be as big as the ones allocated to other member states.

The recent ruling of the Constitutional Court on the primacy of the Polish Constitution over EU legislation has confirmed Poland’s sovereignty in the areas that were not ceded to the European Union. Moreover, it confirmed the previous rulings according to which the constitution is the highest legal act. Of course, there is also a political context to the case as the judges of the Luxembourg Court constantly seek to expand their remit. The tendency is opposed by EU member states trying to retain their competence for the areas that are not covered by EU jurisdiction. We need to prepare ourselves for such discussions in the future.

Poland undoubtedly benefits from the shared process of lawmaking in the EU. This can be seen in areas such as competition control or the free movement of goods, capital and people. Consequently, the debate should not concentrate on whether Poland is a fully sovereign country. There is no doubt that it is, in spite of its decision – made in a sovereign manner – to restrict its room for manoeuvre in some areas.

.Today, the discussion should rather focus on which decisions are best left to the member states, and which we would like to be made at the EU level. The dispute over the rulings issued by the CJEU and the Constitutional Court is largely about this.

Jacek Czaputowicz