Report

Polish Court Ruling Sets Stage for ‘Polexit’

Brussels is scrambling to stamp down a frontal challenge from a Polish court that threatens to undermine the entire European project.

By , an international correspondent based in Vienna.
A demonstrator flashes the victory sign in front of the Constitutional Court in Warsaw, Poland.
A demonstrator flashes the victory sign in front of the Constitutional Court in Warsaw, Poland, as the court ruled that Polish law supersedes European Union law on Oct. 7. Jaap Arriens/AFP/Getty

The integrity of the European Union was challenged on Thursday when Poland’s Constitutional Tribunal ruled that some EU laws are incompatible with the country’s constitution, upping the ante in an ongoing dispute between Warsaw and Brussels over the rule of law.

The decision essentially rejects the primacy of EU law and gives the Polish government a way to ignore directives from the Court of Justice of the European Union (CJEU), especially on matters like judicial independence. It is one of the most severe constitutional crises for the European Union and a threat to its very foundations.

European Commission President Ursula von der Leyen instructed the commission, the bloc’s executive arm, to analyze Thursday’s ruling, but she stressed that EU law has supremacy over national law. “Our utmost priority is to ensure that the rights of Polish citizens are protected,” she said.

The integrity of the European Union was challenged on Thursday when Poland’s Constitutional Tribunal ruled that some EU laws are incompatible with the country’s constitution, upping the ante in an ongoing dispute between Warsaw and Brussels over the rule of law.

The decision essentially rejects the primacy of EU law and gives the Polish government a way to ignore directives from the Court of Justice of the European Union (CJEU), especially on matters like judicial independence. It is one of the most severe constitutional crises for the European Union and a threat to its very foundations.

European Commission President Ursula von der Leyen instructed the commission, the bloc’s executive arm, to analyze Thursday’s ruling, but she stressed that EU law has supremacy over national law. “Our utmost priority is to ensure that the rights of Polish citizens are protected,” she said.

The president of the European Parliament, the Italian politician David Sassoli, called on the European Commission to “take the necessary action,” arguing that the “primacy of EU law must be undisputed.” Jeroen Lenaers, spokesperson for the European People’s Party, the biggest political grouping in the European Parliament, said the ruling put Poland “on the path to Polexit.” The United Kingdom opted to leave the EU in a referendum in 2016, an acrimonious departure that was dubbed “Brexit.”

Earlier this year, Polish Prime Minister Mateusz Morawiecki filed a request for the Constitutional Tribunal to review the compatibility of EU treaties with the Polish Constitution, a move that sparked controversy in Brussels. The EU rejects the legitimacy of the court due to political interference from Poland’s ruling Law and Justice party, known by the Polish acronym PiS.

“This is a very dangerous moment that is taking Poland one step further to what you could call a legal ‘Polexit,’” said Jakub Jaraczewski, research coordinator at Democracy Reporting International. “There are multiple cases regarding the Polish judiciary pending before the CJEU; these can now be disregarded.”

The CJEU, based in Luxembourg, has repeatedly ruled against Poland’s judicial reforms. It has ruled that the methods used to appoint judges to the Polish Supreme Court infringe EU law, and it ruled that the transfer of judges to another court or division in the same court against their will undermines judicial independence.

The Polish Constitutional Tribunal’s Chief Justice Julia Przylebska said Thursday that the effort by the CJEU “to interfere in the Polish justice system violates the principle of rule of law” as well as “the principle of retaining sovereignty in the process of European integration.” At a news conference in Warsaw following the ruling, the leader of PiS, Deputy Prime Minister Jaroslaw Kaczynski, argued that putting EU law above Polish law would threaten the state’s sovereignty and imply “there is no democracy in Poland.” 

Poland joined the union in 2004 and has long been seen as an EU success story. In a recent poll conducted by United Surveys for the Polish media, 88 percent of respondents were against the country leaving the bloc. According to the World Bank, Poland’s economy was among the least affected by the coronavirus pandemic in Europe. 

But in recent years, especially since PiS came to power in 2015, Poland has continually faced off with Brussels over the rule of law, media freedom, and LGTBQ rights. And it is not alone: Hungary, Poland’s illiberal ally, has also presented a serious challenge to the integrity of the EU for much the same reasons. While EU leaders were quick to denounce the Constitutional Tribunal verdict, Budapest has been conspicuously quiet. 

“This is a declaration of war against the European legal order, and it’s a step to defend the autocratic transformation of an EU member state,” said Piotr Buras of the European Council on Foreign Relations. “What’s going to matter now is not just the reaction of the European Commission, but of the other EU member states. If this is lacking then we have complete disorder in the EU.”

Brussels has already withheld approval of 36 billion euros, over $40 billion, in coronavirus recovery funds from Poland due to concerns over the erosion of the rule of law in the country. In September, the European Commission also asked the CJEU to implement daily financial penalties while Warsaw failed to implement the court’s rulings.

“This is serious, because the CJEU and the courts of other EU states may react by suspending judicial cooperation with Poland due to what is happening there, and due to this direct challenge to the EU legal order,” Jaraczewski said. “This is a very dangerous consequence, because it would place Poland partially out of the EU legal system. This decision could have more consequences than the Polish government initially intended.”

Amanda Coakley is an international correspondent and Milena Jesenska journalist fellow at the IWM in Vienna. She covers Central and Eastern Europe and the Balkans. Twitter: @amandamcoakley

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