W. Streeck – “Ultra Vires”
To recapitulate: under current EU doctrine, protecting the rule of law requires in some countries repression of national courts by national governments, while in others it requires their liberation. The German government satisfied the Commission by promising to ‘actively’ discourage anti-European, pro-national tendencies on its highest court, thereby undermining domestic in favour of supranational rule of law; while the Polish government drew the ire of the Commission by encouraging anti-European, pro-national tendencies on the part of its constitutional court, thereby undermining domestic but also European rule of law, as interpreted by the CJEU. Whereas German undermining of domestic rule of law is forgivable because it serves European rule of law, Polish undermining of domestic rule of law is not because it undermines European rule of law.