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Poland's top court rules against the EU's legal order

For several years after the entry of Poland within the EU in 2004, the state remained a big success story of the bloc’s enlargement, presumably set to be the permanent bulwark of European integration. However, Poland’s constitutional court’s ruling on 7th October sent shockwaves across the region; it established the supremacy of the Polish constitution over the EU legislations.  According to the ruling, parts of the EU laws are incompatible with Poland’s highest laws. Polish judges establish a legal basis for the arguments in two ways: 

  1. Articles 1 and 4 of the treaty on the EU vests within the Union the power to act beyond the limitations of competences delegated by Poland in the treaties; 
  2. The European courts employ Articles 2 and 19 to illegitimately overrule the Polish constitution, which includes questioning the legality of the selection of judges.   

The ruling has emerged as a challenge to the core principles of the EU; some experts have compared the move with that of a ‘nuclear strike’ against the bloc’s legal order. Polish verdict has drawn the strong condemnation of the EU’s executive branch and major parties within the parliament, fueling concerns over whether or not Poland is heading towards its exit. Moreover, Warsaw is likely to face disciplinary and possibly criminal proceedings from Brussels.

Origin of the ruling: Poland's constitutional crises (2015-present) 

The conflict escalated in the aftermath of the 2015 elections that enabled the Law and Justice Party (PiS) to exert control over both the presidency and parliament in Poland. Resultantly PiS, in 2015, employed its power for the appointment of judges to the Constitutional Tribunal; it replaced five loyalist judges to the fifteen-member court, forcefully retired come Supreme Court justices, and formed a legal chamber to direct judges and prosecutors. Changes in judiciary provoked several protests in Poland; the European Commission ruled that, as of December 2017, the crises expanded to include thirteen laws, threatening the entire stature of justice in Poland.  

In response to the EU Court of Justice's ruling, Polish PM Mateusz Morawiecki issued a motion calling for the Constitutional Tribunal to initiate a review of law supremacy. However, the Tribunal asserted that Poland's accession to the EU since 2004 does not give the European Court the overriding power in the country's legal matters and that Warsaw has not given up its sovereignty to the EU laws. Moreover, it stated that Poland's state authority would not tolerate external constraints on its authority. Thus, on several occasions, the Polish court has been criticized as 'unlawful,' and 'captured' that has resulted in the structural breakdown of the judicial branch.

Brussels vows swift response against Warsaw

In response to Poland’s ruling on Thursday, Ursula von der Layen stated that the bloc would not be reluctant in employing power vested by the treaties to preserve the uniformity of the execution and respect for the Union laws. In this regard, the EU has a wide range of instruments at its disposal, such as: 

  • Economic tools: the EU can hold up Poland’s share of €750 billion funds for Covid-19 recovery; the bloc has yet to give the green light to Warsaw over €23 billion in grants and €34 billion in cheap loans. Therefore, the EU can make funding conditional, resting upon Poland’s regards of the bloc’s values, laws, and judicial independence.
  • Legal tools: This constitutes the most significant instrument; the European Court of Justice has initiated infringement procedures against Poland. Moreover, the EU seeks to enforce its ruling with heavy fines daily. ICJ has several impending cases regarding Poland; the current situation could serve as a means for ICJ to suspend common judicial cooperation mechanisms with Warsaw. 
  • Political tools: the EU member counties could utilize their political leverage to bring cases against Poland to the European Court of Justice. A recent example of this is Czech Republic’s case against Warsaw over environmental damage. 

Does Poland risk a de facto exit from the EU? 

In the wake of the current situation, opposition parties in Poland are not shying away from depicting the ruling as the first step toward Polexit. Moreover, according to France, such an exit is currently a ‘de facto risk.’ Germany also admonished Poland, stating that membership is dependent on unconditional adherence to shared values and rule; therefore, it is more than just a moral commitment- it is legally binding. 

However, Polish spokesperson Piotr Mueller specified that ruling had no impact in several areas of the EU treaties, including trade, competition, consumer protection, and exchange of goods and services. He added that top courts of other member countries also uphold the primacy of their domestic laws. 

When it comes to Polexit, there are serval voices; for instance, Peach asserts that Poland’s exit will not be the state itself exiting the Union because 80% of its population endorses the state’s membership of the bloc. However, Polexit can occur on legal grounds, i.e., removal of the state of the EU’s legal sphere. Practically, this would damage the credibility of the body, and in the long run, could lead to its collapse.

How is the situation likely to play out?

In order to put the ruling into force, the Polish government must publish it in the Journal of Laws. The procedure can range from days to several months; for instance, ruling against abortion took three months. In the current scenario, Poland can extend the duration to signal the European Commission to withdraw its claims or it will publish the ruling to put the legal order of the EU on fire. 

However, it seems that Poland has dramatized or exaggerated its position. While the government may presume its hardball tactics as a bargaining chip unlock the EU funding, it is not taking into consideration the political and legal repercussions of its decision. 

All in all, it will be crucial to witness the reaction of Polish Judges, whether they will maintain their stance even if it invites criminal proceedings against the state, or will it give in to the demands of the European Court of Justice. 

Written By: Olivium's Editor.


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