The decision by Poland's Constitutional Court to deny the supremacy of EU law over its own national law is, as was to be expected, unleashing a real political battle in which, no matter how you look at it, Europe has a lot to lose if it does not cut off the problem at its roots. Although Poland has been supported only by Hungary and the government of its ultra-nationalist prime minister, Viktor Orban, the conflict is hugely important, because the position that the European Commission ends up taking will have consequences for the rest of the EU member states. If significant leeway is admitted for the positions of Poland and Hungary, it will be read as a message that any country can turn its back on EU legislation as it pleases; conversely, a signal of maximum sanctioning force will dissuade countries that might be tempted to follow in their footsteps.
Spain or, more specifically, the Spanish courts, and especially the senior judiciary, the Supreme Court, and the Constitutional Court, have shown in recent times that they are comfortable standing against wind and tide, to maintain their own positions on questions that other countries have read in a radically different way. I am referring to the convictions of the leaders of the Catalan independence process by the Supreme Court, who were sentenced to more than a hundred years in prison for sedition - initially the judges were even asked to convict them for rebellion - while the European courts have kept all the exiles at liberty and denied all extradition orders that have been submitted.
Thus, a clear condemnation in the decision on Poland would return the precedence to European justice over the justice of the states and send a barbed message to those who believe that Spain's Supreme Court can do and undo as it wishes, regardless of the doctrine emerging from the General Court of the European Union based in Luxembourg. On Wednesday, the European Parliament even called for a legal case to be lodged against the EU executive for failing to comply with its obligation to activate the conditionality mechanism allowing EU funding to be restricted for those countries that violate the primacy of EU law. .
This debate is linked to that of the parliamentary immunity of the Catalan pro-independence MEPs, who can circulate throughout the territory of the European Union. Spain has advised that arrest warrants against them are in force and that, as a result, they would be arrested if they crossed the Pyrenean border. Catalan president Puigdemont and ministers Comín and Ponsati have come to northern Catalonia - part of the French state - on several occasions, without any problems from the gendarmerie, but Spanish threats have had their effect because no one doubts that, if they crossed the border to the south, they would be arrested.
But all this will have an expiry date if the European Commission shows its teeth to those who stray from its doctrine and stops allowing those countries to apply the law of the judicial jungle, effectively meaning that there are two preeminent legislations and, consequently, neither is more important than the other. Now that the debate with Poland is starting, it is time for an act of European reassertion, using the resources at hand to rectify the situation. From this, we will all win. Well, not everyone. The Spanish senior judges will not.