Energy Dilemma

The ecological bifurcation is not a gala dinner. After a summer of extreme climatic events and a new IPCC report confirming its most worrying forecasts, large parts of the world are now roiled by an energy crisis that prefigures further economic troubles down the road. This conjuncture has buried the dream of a harmonious transition to a post-carbon world, bringing the question of capitalism’s ecological crisis to the fore. At COP26, the dominant tone is one of powerlessness, where impending miseries have left humanity cornered between the immediate demands of systemic reproduction and the acceleration of climate disorders.  

Prima facie, one might think that steps are being taken to address this cataclysm. More than 50 countries – plus the entire European Union – have pledged to meet net zero emissions targets that would see global energy-related CO2 emissions fall by 40% between now and 2050. Yet a sober reading of the scientific data shows that the green transition is well off track. Falling short of global net zero means that temperatures will continue to rise, pushing the world well above 2°C by 2100. According to the UNEP, nationally determined contributions, which countries were requested to submit in advance of COP26, would reduce 2030 emissions by 7.5%. Yet a 30% drop is needed to limit warming to 2°C, while 55% would be required for 1.5°C.

As a recent Nature editorial warned, many of these countries have made net-zero pledges without a concrete plan to get there. Which gases will be targeted? To what extent does net-zero rely on effective reduction rather than offsetting schemes? The latter have become particularly attractive for rich countries and polluting corporations, since they do not directly diminish emissions and involve transferring the burden of carbon-cutting to low- and medium-income nations (which will be most severely affected by climate breakdown). On these crucial issues, reliable information and transparent commitments are nowhere to be found, jeopardizing the possibility of credible international scientific monitoring. The bottom line: based on the current global climate policies – those implemented and those proposed – the world is on track for a devastating increase in emissions during the next decade.

In spite of this, capitalism has already experienced the first major economic shock related to the transition beyond carbon. The surge in energy prices is due to several factors, including a disorderly rebound from the pandemic, poorly designed energy markets in the UK and EU which exacerbate price volatility, and Russia’s willingness to secure its long-term energy incomes. However, at a more structural level, the impact of first efforts made to restrict the use of fossil fuels cannot be overlooked. Due to government limits on coal burning, plus shareholders’ growing reluctance to commit to projects that could be largely obsolete in thirty years, investment in fossil fuel has been falling. Although this contraction of the supply is not enough to save the climate, it is still proving too much for capitalist growth.

Putting together several recent events gives a taste of things to come. In the Punjab region of India, severe shortages of coal have caused unscheduled power blackouts. In China, more than half the provincial jurisdictions have imposed strict power-rationing measures. Several companies, including key Apple suppliers, have recently been forced to halt or reduce operations at facilities in Jiangsu province, after local governments restricted the supply of electricity. Those restrictions were an attempt to comply with national emissions targets by restricting coal-fired power generation, which still accounts for about two thirds of China’s electricity. To contain the spillover of these disruptions, Chinese authorities have put a temporary brake on their climate ambitions, ordering 72 coal mines to increase their supply and relaunching imports of Australian coal that were halted for months in the midst of diplomatic tensions between the two countries.

In Europe, it was the surge in gas prices that triggered the current crisis. Haunted by the memory of the gilets jaunes uprising against Macron’s carbon tax, governments have intervened with energy subsidies for the popular classes. More unexpectedly, though, gas price increases have precipitated chain reactions in the manufacturing sector. The case of fertilizers is telling. A US group, CF Industries, decided to shut down production of its UK fertilizer plants, which had become unprofitable due to price increases. As a by-product of its operations, the firm previously supplied 45% of the UK’s food-grade CO2 – whose loss unleashed weeks of chaos for the industry, affecting various sectors from beer and soft drinks to food packaging and meat. Globally, the surge of gas prices is affecting the farming sector via the increase in fertilizer prices. In Thailand, the cost of fertilizers is on track to double from 2020, raising costs for many rice producers and putting the planting season at risk. If this continues, governments may have to step in to ensure essential food supplies.

The global and widespread repercussions of energy shortages and price increases underscores the complex fallout involved in the structural transformation necessary to eliminate carbon emissions. While a reduction is underway in the supply of hydrocarbon, increases in sustainable energy sources are not sufficient to meet growing demand. This leaves an energy mismatch that could derail the transition altogether. In this context, countries can either return to the most readily available energy source – coal – or cause an economic contraction driven by the surge in costs and their effects on profitability, consumption prices and the stability of the financial system. In the short term, then, there is a trade-off between ecological objectives and the requirement to foster growth. But does this energy dilemma hold in the medium and long term? Will we ultimately face a choice between climate and growth?

A successful carbon transition implies the harmonious unfolding of two processes complexly related at the material, economic and financial levels. First, a process of disbandment must take place. Sources of carbon must be drastically reduced: above all hydrocarbon extraction, electricity production by coal and gas, fuel-based transport systems, the construction sector (due to the high level of emissions involved in cement and steel production) and the meat industry. What is at stake here is degrowth in the most straightforward sense: equipment must be scrapped, fossil fuel reserves must stay in the soil, intensive cattle-breeding must be abandoned and an array of related professional skills must be made redundant.

All things being equal, the elimination of production capacities implies a contraction of supply which would lead to generalized inflationary pressure. This is even more likely because the sectors most affected are located at the commanding heights of modern economies. Cascading through the other sectors, pressure on costs will dent firms’ mark-up, global profits and/or consumer purchasing power, unleashing wild recessionary forces. In addition, degrowth of the carbon economy is a net loss from the point of view of the valorization of financial capital: huge amounts of stranded assets must be wiped out since underlying expected profits are foregone, paving the way for fire sales and ricocheting onto the mass of fictitious capital. These interrelated dynamics will fuel each other, as recessionary forces increase debt defaults while financial crisis freezes the access to credit.

The other side of the transition is a major investment push to accommodate the supply shock caused by the degrowth of the carbon sector. While changing consumption habits could play a role, especially in affluent countries, the creation of new carbon-free production capacities, improvements in efficiency, electrification of transport, industrial and heating systems (along with the deployment of carbon capture in some instances) are also necessary to compensate for the phasing out of greenhouse gas emissions. From a capitalist perspective, these could represent new profit opportunities, so long as the costs of production are not prohibitive relative to available demand. Attracted by this valorization, green finance could step in and accelerate the transition, propelling a new wave of accumulation capable of sustaining employment and living standards.

Yet it is important to bear in mind that timing is everything: making such adjustments in fifty years is completely different from having to disengage drastically in a decade. And from where we are now, the prospects for a smooth and adequate switch to green energy are slim, to say the least. The scaling back of the carbon sector remains uncertain due to the inherent contingency of political processes and the persistent lack of engagement from state authorities. It is illustrative that one single Senator, Joe Manchin III of west Virginia, can block the US Democrats’ programme to facilitate the replacement of coal- and gas-fired power plants.

As illustrated by the current disruptions, the lack of readily available alternatives could also hamper the phasing-out of fossil fuels. According to the IEA: ‘Transition-related spending […] remains far short of what is required to meet rising demand for energy services in a sustainable way. The deficit is visible across all sectors and regions.’ In its latest Energy Report, Bloomberg estimates that a growing global economy will require a level of investment in energy supply and infrastructure between $92 trillion and $173 trillion over the next thirty years. Annual investment will need to more than double, rising from around $1.7 trillion per year today, to somewhere between $3.1 trillion and $5.8 trillion per year on average. The magnitude of such a macroeconomic adjustment would be unprecedented.

From the perspective of mainstream economics, this adjustment is still a matter of getting the prices right. In a recent report commissioned by French President Emmanuel Macron, two leading economists in the field, Christian Gollier and Mar Reguant, argue that ‘The value of carbon should be used as a yardstick for all dimensions of public policymaking.’ Although standards and regulations should not be ruled out, ‘well-designed carbon pricing’ via a carbon tax or cap-and trade mechanism must play the leading role. Market mechanisms are expected to internalize the negative externalities of greenhouse gas emissions, allowing for an orderly transition on both the supply and demand sides. ‘Carbon pricing has the advantage of focusing on efficiency in terms of cost per ton of CO2, without the need to identify in advance which measures will work.’ Reflecting the plasticity of market adjustment, a carbon price – ‘unlike more prescriptive measures’ – opens up a space for ‘innovative solutions’.

This free-market, techno-optimistic perspective ensures that capitalist growth and climate stabilization are reconciliable. However, it suffers from two main shortcomings. The first is the blindness of the carbon-pricing approach to the macroeconomic dynamics involved in the transition effort. A recent report by Jean Pisani Ferry, written for the Peterson Institute for International Economics, plays down the possibility of any smooth adjustment driven by market prices, while also dashing the hopes of a Green New Deal that could lift all boats.

Observing that ‘Procrastination has reduced the chances of engineering an orderly transition’, the report notes that there is ‘no guarantee that the transition to carbon neutrality will be good for growth.’ The process is quite simple: 1) since decarbonation implies an accelerated obsolescence of some part of existing capital stock, supply will be reduced; 2) in the meantime, more investment will be necessary. The burning question then becomes: are there sufficient resources in the economy to allow for more investment alongside weakened supply? The answer depends on the amount of slack in the economy – that is, idle productive capacity and unemployment. But considering the size of the adjustment and the compressed timeframe, this cannot be taken for granted. In Pisani Ferry’s view, ‘Impact on growth will be ambiguous, impact on consumption should be negative. Climate action is like a military build-up when facing a threat: good for welfare in the long run, but bad for consumer satisfaction’. Shifting the resources from consumption to investment means that consumers will inevitably bear the cost of the effort.

In spite of his neo-Keynesian perspective, Pisani-Ferry opens up an insightful discussion on the political conditions that would allow for a reduction in living standards and a green class-war fought along income lines. Yet, in its attachment to the price mechanism, his argument shares with the market-adjustment approach an irrational emphasis on the efficiency of CO2 emission reduction. The second shortcoming of Gollier and Reguant’s contribution becomes apparent when they call for ‘a combination of climate actions with the lowest possible cost per ton of CO2 equivalent not emitted’. Indeed, as the authors themselves recognize, the setting of carbon prices is highly uncertain. Evaluations can range from $45 to $14,300 per ton, depending on the time horizon and the reduction targeted. With such variability, there is no point in trying to optimize the cost of carbon reduction intertemporally. What is important is not the cost of the adjustment, but rather the certainty that the stabilization of the climate will occur.  

Delineating the specificities of the Japanese developmental state, the political scientist Chalmers Johnson made a distinction that could also be applied to the transition debate:

A regulatory, or market rational, state concerns itself with the form and procedures – the rules, if you will – of economic competition, but it doesn’t concern itself with substantive matters […] The developmental state, or plan-rational state, by contrast, has as its dominant feature precisely the setting of such substantive social and economic goals.

In other words, while the first aims at efficiency – by making the most economical uses of resources – the second is concerned with effectiveness: that is, by the ability to achieve a given goal, be it war or industrialization. Given the existential threat posed by climate change and the fact that there exists a simple and stable metric to limit our exposure, our concern should be with the effectiveness of reducing greenhouse gases rather the efficiency of the effort. Instead of using the price mechanism to let the market decide where the effort should lie, it is infinitely more straightforward to add up targets at the sectoral and geographical levels, and provide a consistent reduction plan to ensure that the overall goal will be achieved in time.

Morgan Stanley’s Ruchir Sharma, writing on this question in the FT, raises a point which indirectly makes the case for ecological planning. He notes that the investment push necessary to transition beyond carbon presents us with a trivially material problem: on the one hand, dirty activities – particularly in the sectors of mining or metal production – are rendered unprofitable due to increased regulation or higher carbon prices; on the other hand, investment for the greening of the infrastructure requires such resources to expand capacities. Decreasing supply plus rising demand is therefore a recipe for what he calls ‘greenflation’. Sharma therefore argues that ‘Blocking new mines and oil rigs will not always be the environmentally and socially responsible move.’

As the spokesperson of an institution with vested interest in polluting commodities, Sharma is hardly a neutral commentator. But the problem he articulates – how to supply enough dirty material to build a clean-energy economy – is a real one, and relates to another issue with the putative market-driven transition: carbon pricing does not allow society to discriminate between spurious uses of carbon – such as sending billionaires into space – and vital uses such as building the infrastructure for a non-carbon economy. In a successful transition, the first would be made impossible, the second as cheap as possible. As such, a unique carbon price becomes a clear pathway to failure.

This brings us back to an old but still decisive argument: rebuilding an economy – in this case one which phases out fossil fuels – requires restructuring the chain of relations between its diverse segments, which suggests that the fate of the economy as a whole depends on its point of least resistance. As Alexandr Bogdanov noted in the context of building the young Soviet state, ‘Because of these interdependent relationships, the process of enlargement of the economy is subject in its entirety to the law of the weakest point.’ This line of thought was later developed by Wassily Leontief in his contributions to input-output analysis. It holds that market adjustments are simply not up to structural transformation. In such situations, what’s required is a careful and adaptative planning mechanism able to identify and deal with a moving landscape of bottlenecks.

When one considers the economic challenges of restructuring economies to keep carbon emissions in line with the stabilization of the climate, this discussion acquires a new framing. Effectiveness must take precedence over efficiency in reducing emissions. That means abandoning the fetish of the price mechanism in order to plan how the remaining dirty resources will be used in the service of clean infrastructure. Such planning must have international reach, since the greatest opportunities for energy-supply decarbonation are located in the Global South. Moreover, as transformation on the supply side will not be enough, demand-side transformations will also be essential to stay within planetary boundaries. Energy requirements for providing decent living standards to the global population can be drastically reduced, but in addition to the use of the most efficient available technologies, this implies a radical transformation of consumption patterns, including political procedures to prioritize between competing consumption claims.

With its longstanding concern for planning and socialized consumption, international socialism is an obvious candidate to take on such a historic task. Though the poor state of socialist politics doesn’t conjure much optimism, the catastrophic conjuncture we are entering – along with price volatility and the ongoing spasms of capitalist crises – could increase the fluidity of the situation. In such circumstances, the left must be flexible enough to seize any political opportunity that will advance the cause of a democratic ecological transition.

Read on: Mike Davis, ‘Who Will Build the Ark?’, NLR 61.


Kopatchinskaja’s Craft


Theodor Adorno believed that efforts to explain why a specific musical tradition came into being in one place rather than another should strike even the most historically minded reader or listener as spurious. This, he maintained, had nothing to do with the notion that music is, at bottom, an ahistorical art. Rather, it was linked to the effects musical works call forth. The crafting of a new musical dialect, like the unforseeen appearance of a melody in a work’s form, elicits an expressive ‘leave-taking more moving than any words’. Musical tones possess sensual qualities that, when set into motion, push and drive against all boundaries – geographical, economic, social, temporal – that impede their emancipatory potential. Music, for Adorno, aspires to its own autonomy.

We cannot of course speak critically of music without acknowledging the ways in which it is a thoroughly social and political phenomenon. Adorno, for one, would not contest this. His writings assert that modern musical works are intimately bound up with capitalist development. The birth of Viennese modernism under the aegis of Arnold Schoenberg and his two main pupils, Anton Webern and Alban Berg, confirms this principle. From the outset, the energies released by this moment were hemmed in by a conjuncture that absorbs everything – even atonality – into its orbit. Capital demands that old aesthetic forms be recycled and repurposed, and the music of fin de siècle Vienna, a hothouse in full bloom, was always ripe for the picking.

A visit to post-war Vienna prompted Adorno himself to compose a set of reflections of the circumstances that gave rise to this musical idiom. The resulting essay, ‘Vienna’, written in 1960, hinges on a powerful proposition: that the music of Schoenberg, Webern, and Berg mounted a form of resistance to what Adorno calls, in a burst of wit, the city’s ‘musical roast-chicken culture’. At the turn of the century, the capital of the Daube monarchy possessed a societal structure – politically reactionary; artistically orthodox; all but feudal yet reliant on luxury goods – that was openly hostile to innovation. ‘The compact world of Viennese society’, quips Adorno, ‘has made a natural monopoly of musicality that once and for all absolves people from any effort’.


A recording put out earlier this year by the Alpha Classics label gives us a new opportunity to survey this landscape. Its centrepiece is Schoenberg’s Pierrot Lunaire, an opus featuring an assembly of twenty-one short melodramas for voice and five instruments. Schoenberg premiered his composition in 1912, yet its lavish interplay of aesthetic forms rivals the most advanced mixed-media art of our time. Set to a series of poems by the French symbolist Albert Giraud, the piece is structured around a cluster of lively contrasts: talk of religion mingles with talk of trespass; everyday speech-cadences blur into operatic song; rhythm is mediated by poetic text, which in turn conveys pitch, contour, range, timbre, and tone; cabaret humour is paired with the coolness of classical forms, such as free counterpoint, canon, fugue, passacaglia.

After Pierrot, a series of Viennese confections complete the recording’s programme. Schoenberg’s arrangement of Johann Strauss Jr.’s Emperor Waltz gives way to a set of more robust offerings – the Brahmsian Phantasy for Violin and Piano (Op. 47) and Webern’s Four Pieces for Violin and Piano – followed by another palate cleanser, Fritz Kreisler’s Little Viennese March. And to end this feast? Schoenberg’s Six Little Piano Pieces, an intransigent yet playful denouement. A teeming display, albeit one with an obvious omission: Alban Berg, the Viennese sensualist par excellence. Schoenberg’s role, too, as the principal protagonist of musical insurrection remains undisputed.

The leading light of this selection is the Moldovan-born, Swiss-based violinist, Patricia Kopatchinskaja. Kopatchinskaja, whose family fled to Vienna from the Moldavian Soviet Socialist Republic in 1989, today resides in Bern, yet her reputation as a consummate instrumentalist has become global in recent years. London, Vienna, Los Angeles, Tokyo have come calling. As an article in the New York Times notes, Kopatchinskaja has been dubbed the ‘wild child’ of an otherwise senescent classical musical scene, in part because she cuts a decidedly unconventional figure. Often taking to the stage barefoot, she has also been known to hum along with the orchestra she accompanies.

It has always been a habit of the bourgeois concert-going public to fixate on such idiosyncrasies. But the recording at hand transcends them. Throughout, Kopatchinskaja forces her own lines of aesthetic interrogation. Rather than setting herself the task of mere historical re-enactment, Kopatchinskaja’s procedure is to draw out the latent challenges that her repertoire poses to our contemporary manners and habits of listening. Her playing aims not to reproduce a slice of history, but to bathe us in the diffusion of attitudes, tones, colours and musical forms that made Viennese modernism possible in the first place.

Critical assessments of Kopatchinskaja’s recording will find much to celebrate. The virtuosity on display is typified by an exacting rigour, yet her attention to detail never instrumentalises the material. On the contrary, it infuses passages with a lyricism that leads into speculative territory. Yet the boldness of approach is not restricted to an expressive shaping of sound. It manifests itself on two other levels. Firstly, Kopatchinskaja, a violinist by trade, assumes the role of singer to perform the solo part of Pierrot. In the world of classical music, such disregard for the division of musical labour is unusual, notions of skill delimited by specific fields of competence. Equally heterodox is Kopatchinskaja’s selection of musical repertoire. Her programme moves pendulum-like from one vernacular to the next, from unruly dodecaphonic expositions to controlled Viennese waltzes, only to swing back to the former.


Unsurprisingly, this interpretative freedom has ruffled some feathers. One critic, writing for The Guardian, applauds the precision of Kopatchinskaja’s rendering of Pierrot yet also finds its extremities – ‘little-girl squeaks’ and ‘faux tantrums’ – to be downright intrusive. A similar principle is applied to her selection of music: while the panorama of musical styles gives way to discrete moments of clarity, the album as a whole is ‘a real mixed bag’. What Kopatchinskaja lacks is a more ‘controlled’ approach: what must be tamed is not her technique, which is of course ‘outstanding’, but her defiance of convention. The tone of condescension here no doubt contains the kernel of a broader cultural allegory: namely, the subordination of the female virtuoso under the capitalist mode of production. It also distils the norms that determine what the performance of classical music ought to be or, for that matter, could be

What we find here is a transposition of Adorno’s dialectic: if music strives to take flight, if a performance surpasses tradition, then its wings must be clipped. What the mainstream critique of Kopatchinskaja’s artistry fails to attend to is, in the end, what is most praiseworthy about it. In her hands a whole range of social antagonisms are brought to the fore. Measured restraint comingles with unapologetic experimentation; the continuity of tradition justifies critical retort; the rationalization of aesthetic criteria provokes flights of lyricism. But if our listening focalizes around the interplay of these elements, it also takes heed of what remains inassimilable, and thereby novel, in their presentation.

Ultimately, the source of Kopatchinskaja’s proximity to Vienna rests on the way her virtuosity evokes the uneven, paradoxical composition of the city. To Adorno’s mind, it was not the task of Viennese modernism to conserve its native components but to devour them, bit by bit. This procedure was never value-free: it kept the past alive by dint of excavating its contradictions. Earlier musical forms – waltz, sonata, bagatelle – surface in this music not as pastiche but as ossified remnants of an undead culture.

The term Bandeln, a now-defunct idiomatic expression, is an Austrian word that connotes idleness. This disposition is not to be confused with lethargy, the vague listlessness of the limbs and mind. It indicates, rather, a lively state of inaction – immersion in an activity that does not yield profit. ‘What is meant’, writes Adorno, ‘are activities with which to pass the time, to squander it, without any evident rational purpose, but also activities which are, absurdly, practical’. In English, the term ‘pottering’ perhaps best captures this productive form of unproductivity, an active yet uninvolved immersion in the futile.

It was the genius of Schoenberg, Webern, and Berg to elevate pottering to a compositional ideal. For Adorno, their music evinced a special kinship with the objects of everyday experience: they ‘refined the details of their scores as if they were polishing, cleaning, or sanding furniture’. Schoenberg especially knew what it meant to potter. His diligent arrangements of Strauss’s waltzes scrubbed and worked over popular cultural artifacts, exuding the air of attentive handiwork. This is no surprise, for the ethic of pottering tends to flourish in cities where ‘bourgeois values have not prevailed to the point where time is money’. Vienna was once a breeding ground for pottering. No longer. The Danube, bereft of its timeless flow, is today a reservoir of post-industrial dread.

While the exigencies of capital may have effaced pottering, it has been granted an afterlife in Kopatchinskaja’s musical practice. Her treatment of the Viennese legacy potters in all the right ways. Kopatchinskaja lingers in the fissures of classical music’s divisions of labour. She sings and plays the violin as if these activities were interchangeable, fine-tuning the movement from one to another as if she were loitering in a park to record the sighting of a rare bird. She skips from Schoenberg to Strauss to Webern to Kreisler as if their compositions were pieces of furniture, whose presentation in space must be tinkered with to pay tribute to a room’s ambiance.

The musical consciousness of turn-of-the-century Vienna held forth a promise that could not be reconciled with its surroundings. In it, traces of utopia converged with an ever more hostile social and economic conjuncture. Kopatchinskaja’s achievement is to revivify them. We can begin to hear the fluttering of her wings.

Read on: Max Horkheimer & Theodor Adorno, ‘Towards a New Manifesto’, NLR 65.


Rusty Charley

Weird things are going on in Brussels, and they are getting weirder by the day. The European Union, an international would-be superstate running an impressive democratic deficit, is gearing up to punish two of its democratic member states and their elected governments, together with the citizens that have elected them, for what it considers a democratic deficit. Governing the EU is an unelected technocracy, a constitution without a people, consisting of unintelligible international treaties and the accumulated rulings of an international court, the Court of Justice of the European Union (CJEU) – treaties that cannot in practice be revised, and rulings that only the court itself can revise – with a parliament that is not allowed to legislate and knows no opposition.

The current issue is an old one but was long avoided, EU-style, in order not to wake sleeping dogs. To what extent does ‘European’ law, made by the national executives assembled in the back rooms of the European Council and the secret chambers of the CJEU, supersede national law, made by the EU’s democratic member states? The answer seems simple enough, for EU-uneducated simple minds: where, and only where, in the Treaties (spelled in Brussels with a capital T, presumably to indicate their sublime nature) member states have bestowed on the Union the right to make law that is binding on all member states, so that on the issues they have delegated to the EU all would have the same law and would have to stick to it, in order to allow the Union to function smoothly.

Had it only ended there. Already in the early 1960s the Court discovered in the Treaties a general supremacy of EU law over national law. Note that to the naked eye, nothing like this is to be found in the Treaties; you need to be a member of the court to see it. At first, as long as the jurisdiction of the EU was still rather narrow, nobody bothered. Later, however, when the EU was increasingly used to open up national economies to the ‘four freedoms’ of the Single Market and then the common currency, the doctrine of the primacy of European law served as a convenient device to extend the Union’s authority without rewriting the Treaties, especially as this became ever more difficult with the rising number of member states, from six to, before Brexit, 28. What at first was to be no more than a highly selective upward transfer of national sovereignty, gradually became the principal institutional engine for what came to be called ‘integration by law’, operated by the Union’s central authorities and supported by varying coalitions of member states and governments – something considered by lawyers in particular to be normatively and technically superior to integration by politics.

While motives changed over time, integration by law always involved a deep reading of the Treaties to discover ever new reasons for subjecting democratic national polities to a post-democratic international technocracy. With Treaty revisions effectively blocked after the defeat in 2005 of a draft ‘Treaty for a European constitution’ in a French referendum (55.7% voting against it), the CJEU eventually became the EU’s single most important legislative and indeed constitution-writing body. (Ironically, one of the likely reasons why the constitutional treaty was rejected was that it explicitly stipulated the primacy of European law.)

Nobody knows for sure what is hidden in the depths of the European Treaties as they now stand, hundreds, even thousands of pages depending on the typeface. The only exception is the CJEU, and this is because what it says it finds in there is for all practical purposes what is in there, as the court always has the last word. So the CJEU, or in anticipation of it the European Central Bank or the European Commission, may read into the Treaties functional reasons for what the Germans call ‘more Europe’ – monetary policy must (!) today (!) encompass fiscal policy – or general intentions – hidden in the commitment of member states to an ‘ever closer union among the peoples of Europe’, reading people for peoples – or ‘values’ like ‘democracy’ and ‘human rights’ requiring, for example, more enlightened sex education in Hungarian state schools.

What precisely it will find in each case may be uncertain; what one can know for sure, however, is that the Court will never miss an opportunity to ‘build Europe’, meaning to confirm the supremacy of European over national law, as ultimately made by itself. Watching the CJEU go about its duties reminds one of a character in a Damon Runyon story called Rusty Charley, a small-time gangster working the 1940s Broadway who, when playing dice with his fellow-gangsters, rolls the dice inside his hat and then announces the result without letting the others take a look. Although he always won, nobody felt like asking inconvenient questions since Charley was ‘such a guy as is apt to hate being called a liar’.

That the supremacy of European over national law has presently become a matter of high political drama is to do with the EU’s politics of extension-turned-overextension. Facing conflicts and cleavages that they cannot politically contain, the ‘pro-Europeans’ are placing their hopes in the Court, to substitute the legitimacy of the law for the exhausted legitimacy of supranational politics. At the centre of the present controversy are Poland and Hungary with their ‘illiberal’ political regimes. Both countries insist on a strict interpretation of the Treaties, one that tightly limits the extent to which a member state’s politics and European policy can be a matter of concern for other member states or for EU institutions.

In the so-called ‘Treaty base’, a country’s legal system is subject to EU supervision to the extent that it may be needed to ensure the government’s proper, non-corrupt use of EU funds. While in a literal reading this is all that is meant by the so-called ‘rule of law’ requirement, ‘pro-Europeans’ claim it extends to the status and organization of a country’s highest court, in particular its independence from the executive. Member states are also expected by the treaties to conform to certain democratic and human rights standards; if they do not the Council can, by unanimous vote, take away their voting rights – not, however, expel them, which isn’t an option for an international organization that considers membership irreversible.

Normally, corruption and the politicization of a country’s highest court are not much of an issue in European politics. As to corruption, Poland is known to be largely clean (Hungary less so) while countries like Romania, Bulgaria, Slovenia, Slovakia and Malta are widely known as strongholds of cronyism and venality, not to mention, in some cases, the deeply entrenched abuse of minorities. Indeed, both Slovakia and Malta have recently witnessed the assassination, by criminal gangs connected to government circles, of independent journalists investigating corruption in high places. Still, nobody threatens to cut their European subsidies, and the liberal European press carefully abstains from comparing the Polish and Hungarian ‘rule of law’ to theirs.

There is reason to believe that this is because, unlike Poland and Hungary, they reciprocate for cash received by always voting with the Commission and otherwise keeping their mouths shut. Similarly, political influence on a country’s high courts is something that EU bodies have good reason not to make too much fuss about: where there are constitutional courts at all, all of them are, in one way or other, politicized; for Spain see the recent case of Podemos MP Alberto Rodriguez. (Sometimes politicization is considered outright desirable: Note that the EU commission and Parliament are taking Germany to the CJEU for its government not having prevented its Constitutional Court from forming an independent judgment, to the embarrassment not least of the German government itself, on the limits of European legal authority, in the case of the ECB’s debt purchasing programs.) What is special about Poland and Hungary is not that their highest judges are appointed ‘under the influence’, but that their governments, like increasingly the German constitutional court, openly insist on a narrow interpretation of the primacy of European law and a correspondingly extensive interpretation of – their – national sovereignty, in open defiance of ‘integration by law’, or by empire, as conducted by the CJEU.

The story that is presently unfolding here, then, is not a legal but a political one. Its most recent episode started with the Council passing the multi-billion NGEU Corona recovery fund, with considerable sums allocated to Hungary and, in particular, Poland, even though they were only marginally affected be the virus. For the European Parliament (EP), which has to approve the measure, this was an opportunity to extend its efforts to bring about regime change in the two countries, by making disbursement of their recovery money dependent on political and legal concessions to the EU. Elections are upcoming in both countries, and the hope was that a loss of European funds, allegedly destined to enable Poles and Hungarians to have a better life, more resilient to capitalist crises in general and coronavirus in particular, would undermine the present governments, as would getting the funds by caving in to ‘Europe’.

Hopefully this would, in the course of international elite management, put governments in place that are less responsive to their peoples and more to ‘Europe’, as constituted by the EU. It might also increase the number of liberal MEPs from the two countries, making the EP even more ‘pro-European’ than it already is. The problem for the Commission was that NGEU needed a unanimous vote in the Council, with Poland and Hungary set to vote against it if it came with any special clause directed against their governments. At the same time, the EP made its approval conditional on the Commission accepting what came to be called a ‘rule of law mechanism’, forcing the Commission to withhold funds to countries not respecting the primacy of European law, as discovered by the Court.

To get its way, the Commission went along with the EP while, apparently, promising Hungary and Poland that the ‘mechanism’ would never be activated. Officially, it was announced that it would be used only after its approval by the CJEU, where Poland and Hungary would challenge its legality. This was understood to take time, longer than the disbursement of the NGEU funds. Meanwhile on the Council, the ‘frugal’ Northern Europeans, led by the Netherlands, insisted that Poland and Hungary be treated harshly – probably to make their national publics believe that they could save precious North European money by having the EU cut the Polish and Hungarian allotment, in punishment for insufficient adherence to the rule of law. The result was an unprecedented public row, with pressure on the Commission mounting to be strict with the two ‘illiberal democracies’, inviting the Court to move faster than expected. In response the Polish Constitutional Court issued a ruling, long in the making but held back for political reasons, which, invoking the precedent set by the German Verfassungsgericht, declared the Polish constitution generally to be above European law. More turmoil can safely be predicted.

Non-German observers find it hard to avoid the impression that the worst rabble-rousers in the battle over Poland’s and Hungary’s liberal-democratic deficit are the Germans. A leading figure here is one Katarina Barley, Social Democrat and a former Minister of Justice in the Grand Coalition, until her party made her its top national candidate for the 2019 European election. This ended in a veritable disaster, at 15.8% after 27.3% five years earlier. Having moved willy-nilly to Brussels, Barley managed to secure for herself one of the fourteen (!) posts of Vice-President of the EP. In the autumn of 2020, Barley let it be known on German radio that the ‘rule of law mechanism’ had to be applied to ‘starve’ (aushungern) Viktor Orbán in Hungary as well as Poland generally. There are vivid memories in Poland, shared across generations, of the last German attempt to starve the country – memories apparently alien to ‘pro-European’ German politicians who, however, know for sure how neighbouring countries have to be governed: on the German model, as specified by the German government via Brussels.

Similarly Manfred Weber from the CSU, chief of the Christian Democrats in the EP and former candidate-in-vain for the presidency of the Commission, keeps threatening Poland and Hungary with ejection from the EU (which is not provided for in the Treaties). The German Foreign Minister, also a Social Democrat, welcomed the ‘rule of law’ statute for its capacity to ‘inflict pain’ on Hungary and Poland, and was applauded by a veritable army of German Greens in and out of the EP, cheered on by the German press, ‘quality’ or not, public broadcasting included. If you add von der Leyen, Polish citizens may be forgiven for believing that their country – whose government, like that of Hungary, has the support of more or less one half of its people – has again become an object of German aggression.

What is behind this, apart from the amazing historical amnesia, or sheer stupidity, of all-too-many German ‘pro-Europeans’? The money that goes to smaller EU member countries under NGEU must appear enormous to the average German taxpayer, especially as he or she begins to divine the huge costs of the impending ‘energy turn’, or of renovating the austerity-‘starved’ German infrastructure. The real object of the recovery fund – keeping national elites in Eastern Europe who are committed to the Internal Market and averse to alliances with Russia or China in power – is too delicate to talk about in public. So it needs to be demonstrated that the money buys something more uplifting than imperial stability: submission to Western European cultural leadership documented by the selection of leaders that suit Western European taste. One example would be the neoliberal Donald Tusk, a former Polish Prime Minister who was voted out of office after his government had ruined the national economy, only to be put in a holding pen in Brussels as one of the handful of European Presidents, where he was groomed for a victorious return after putting an end to Kaczyński and his ilk.

Will Poland and Hungary learn to be like Romania or Bulgaria, if not Malta and Slovakia, and thereby placate their Brussels foes? If they refuse and the CJEU gets the last word, another this time Eastern hour of truth may strike. How the court will rule is as certain as that the number of pips on Rusty Charley’s dice will be the number he needs to win. This may open the road to Polexit, just as Merkel’s denial of concessions to Cameron on immigration added momentum to Brexit. While von der Leyen has increasingly adopted the rhetoric of Barley, Weber and the Greens, Merkel, in her last hours as Chancellor, urged the EU to exercise moderation and seek a political rather than a juridical solution. (Merkel may have been notified by the United States that they would not be amused to see Poland, their strongest and safely anti-Russian ally in Eastern Europe, leave the EU, where it is fed by Western Europe so that it can be armed by the U.S.)

In this context, note that there now seems to be a slow awakening in other member countries over the sheer presumptuousness of the EU’s increasingly explicit insistence on the general primacy of its law over that of its member states, including their constitutional law. The battle of Poland and Hungary may put an end to the era when ‘integration by law’ could, thanks to its incrementalism, be treated by increasingly short-termist national governments with benevolent neglect. For example, French centrist politicians getting ready to run for the Presidency next year, like Valérie Pécresse (Les Républicains), Arnaud Montebourg (a former Socialist) and even Michel Barnier, the EU’s militant Brexit negotiator, have begun to worry about what they now call French ‘legal sovereignty’ – some of them, including Barnier of all people, demanding a national referendum to establish once and for all the supremacy of French over European law.

While this is being written, out of the blue the CJEU sentenced Poland to a fine of one million euros per day for not having abolished a chamber of its Supreme Court set up by legislation to oversee the Polish judiciary with the intention, it appears, to subject it to greater political control. (Poland has already stated its readiness to abolish the chamber by the end of the year.) Together with another fine of 500,000 euros per day previously imposed for continuing to operate a particularly dirty soft coal mine, this amounts to roughly half a billion euros per year. As much as this may seem, it is miniscule in comparison to the 36 billion Poland is due to get out of the recovery fund. Apparently, these are currently being held back by the Commission under pressure from the EP, until now without formal explanation.

Whether this kind of political hardball will bring about the desired regime change is, however, far from assured. The first line of the Polish national anthem, Jeszcze Polska nie zginęła, translates as ‘Poland is not yet lost’; it expresses a strong appetite for fighting a battle, even a losing one, to the end, against the odds, in defence of the national honour. In part because of this, a political deal still seems possible, and perhaps the one million fine is no more than the last hurrah of a court that expects to be sidelined by politicians able to think twice before they invite another national exit. (The German commentariat is certain that Poland will give in, being for sale like everybody else.) Rumour has it that Donald Tusk, who recently appointed himself Spitzenkandidat of the Polish opposition for the 2023 national election, has behind the scenes sought and received assurances from the Commission that the first instalment of the Polish share in the recovery fund will soon be disbursed, probably fearing that if it were not, this would not help him but the government of Kaczyński.

Read on: Gavin Rae, ‘In the Polish Mirror’, NLR 124.