EU court is not an upholder of democracy

The decision of the EU Court of Justice on 27 October ordering Poland to pay the EU Commission a daily penalty of €1 million for failing to comply with an order of the court in July was welcomed by the slavishly pro-EU Irish media as a victory for “democracy” and the “rule of law.”

The narrative in the media was that the right-wing Polish government, which had severely curtailed women’s rights and those of the LGBTQ community, was intent on another anti-democratic move by breaching a fundamental rule of the EU, and that the Commission, like a knight in shining armour, had come to the rescue.

However, the fact that the Polish government is reactionary and xenophobic should not be allowed to cloud the issues involved.

The issue is straightforward. In July, Poland’s Constitutional Tribunal ruled that the ECJ could not impose interim measures pertaining to Poland’s judicial system; and in October it ruled that several articles of the Treaty on European Union were inconsistent with Poland’s constitution. This was a serious challenge to the ECJ’s claim that it has primacy over all national courts in the EU.

Despite the howls of anguish from our pro-EU media, Poland is not unique. In July 2020 the German Constitutional Court ruled that it had the authority to ignore an ECJ decision. Courts in the Czech Republic, Italy, Denmark and Spain have also upheld the authority of their national courts. It should also be noted that this presumption of supremacy enjoyed by the ECJ was not granted by any treaty but instead was claimed by the court for itself in two landmark cases, Van Gend en Loos (1963) and Costa v. ENEL (1964).

What, then, is the situation regarding the Irish courts? Article 34.5.6º of the Constitution, which deals with the courts, clearly states: “The decision of the Supreme Court shall in all cases be final and conclusive.” However, far from upholding the constitutional position and defending the independence of the Irish courts, in Meagher v. Minister for Agriculture and Food [1994] the Supreme Court ruled: “It is well established that Community law takes precedence over our domestic law. Where they are in conflict, it is the Community law that prevails.”*

But the pro-EU (or EEC, as it was) forces were determined that the Constitution could not be used to defend sovereignty. Article 29.4.6 states: “No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union.” In the Dáil debate on 2 December 1971 Justin Keating of the Labour Party said:

In one sentence, we have this incredible and extraordinarily comprehensive sweeping aside of very large parts of our Constitution on the one hand, while on the other hand there is an extraordinary and comprehensive acceptance of laws, or rules and of actions taken by the Communities which were not responsible to any democratic organisation. We are rubberstamping undemocratic and bureaucratic decisions.

Article 29.4.6 trumps any constitutional provision that could deem an act of the Oireachtas or measure taken by the Government to be unconstitutional if the said act or measure was necessitated by membership of the EU.

The Constitution is the basic law of the Irish state. It is far from perfect, and we have seen mass mobilisations to build on the freedoms it proclaims. The existence of article 29.4.6 means that we have not been a sovereign republic for the past fifty years. It is time this continuing assault on Irish democracy was removed from the Constitution. As long as it exists, any future progressive changes to the Constitution, such as neutrality, or nationalising water, will be open to attack if and when the EU Commission makes more changes to the requirements of membership.

*Meagher v. Minister for Agriculture and Food [1994] 1 IR 329, at 360 (SC).