Image Credits: @nemesiaproductions on Unsplash (Unsplash License)
On October 7, 2021, Poland’s Constitutional Tribunal, the country’s highest constitutional court of law, ruled that certain parts of the European Union’s (EU) law were unconstitutional under Polish law. The tribunal concluded that the Polish national constitution had primacy over EU law, effectively dismantling the legal basis upon which the EU itself was founded. Poland argued that these clauses in EU law contradict their constitution and are “beyond the limits of competences transferred by the Republic of Poland in the treaties,” igniting fears of a potential Polish exit from the EU.
This conflict brings into question the democratic fabric of the EU itself and whether nations can now start disobeying the founding principles of such a treaty. While this dispute continues, the long-term stability of the EU hangs in the balance. To understand the issue, however, it is necessary to examine the foundations of the EU treaties and what effect a Polish exit may have.
EU Law and Treaties
All member nations of the EU are obligated to follow EU law first, the foundational basis of the union, before their own laws. These binding treaties amongst member states “set out EU objectives, rules for EU institutions,” and dictate “how decisions are made and the relationship between the EU and its member countries.” EU institutions, such as the European Parliament and European Council, are responsible for adopting passed legislation, which the individual EU member states then implement. Thus, EU treaties are crucial to the continuing efficient functioning of the union as a whole, as EU nations are interdependent on trade, commerce, economic development, and currency, amongst others. When a member state rejects such legislation, it calls into question the core values and efficacy of the EU.
Constitutional Tribunal Ruling
Seated in Warsaw, the Polish Constitutional Tribunal deals with issues or complaints regarding compliance with the Polish constitution and other international agreements. The tribunal is composed of 15 judges appointed by the Sejm of the Republic of Poland, the lower house of the bicameral parliament. The current judges on the tribunal are all backed by the ruling party in power, the Law and Justice party (Prawo i Sprawiedliwość or PiS), a right-wing populist and national conservative party. Since 2015, the PiS has taken control of various institutions within the justice system and general government, including the Constitutional Tribunal and the Supreme Court, by replacing the heads with political allies.
On October 7, the tribunal ruled that certain parts of the treaty were “incompatible” with Polish law, escalating already fragile tensions between Warsaw and Brussels (Poland’s nationalist party in power has often come head-to-head with the EU in the past). This dispute is over changes to the Polish judicial system that would give the ruling party far more power over the courts. This recent ruling has led the two entities to become “embroiled in a battle of values.” Experts say that by rejecting key EU law, the PiS government and tribunal are jeopardizing the future of Poland and the overall stability of the EU itself despite Poland reassuring that they have no intentions of pulling from the EU through a “Polexit.” This ruling comes after years of disputes between Warsaw and Brussels regarding the “independence of courts, media freedom and LGBTQ rights.” The tribunal ruled that “Poland’s constitution can’t allow the EU to influence spheres where the country hasn’t deferred powers” to the 27-nation bloc. Jaroslaw Kaczynski, the head of the PiS party and one of the country’s most powerful politicians, stated that if the EU has the power to change any Polish law, then “democracy is a sham, pure fiction,” and “it would mean [that] Poland isn’t a sovereign state.”
Implications of the Ruling
The EU bloc ties the 27 member states under one legal system, but the ruling decreased the chances that the EU will receive the 36 billion Euros (42 million USD) from the bloc’s pandemic aid—Prime Minister Mateusz Morawiecki has stated that Poland can withstand any pandemic losses as Poland’s finances are in good shape. Justice Commissioner Didier Reynders of the EU said that they “don’t want any deviation from these principles” and that they will fight back against these rulings as they undermine the legal foundations of the EU itself.
This ruling has fueled the primacy issue in the EU. Last year, Germany’s top judicial court, the Federal Court of Justice (Bundesgerichtshof–BGH ), claimed that the EU’s tribunal court over-exerted their power when they backed the European Central Bank’s quantitative-easing policy. Quantitative easing is a policy where a central bank purchases long-term securities from the secondary market in an attempt to increase the money supply and encourage spending and other investments. Germany’s case revolves around debt, yet others are concerned that Poland may use this to “ignore EU rules it doesn’t want to comply with,” allowing others to follow suit. They are afraid that this may create a ripple effect that may unravel the structural foundations of the EU—leading to far more than simply legal problems. The European Commission, however, has stated that Poland’s actions will not go unpunished. Jaroslaw Gowin, an opposition lawmaker, stated that Poland has “painted itself into a corner” and “now the country will face the consequences.”
Donald Tusk, a former EU leader and Poland’s leading opposition leader, organized nationwide protests in support of Poland’s EU membership. Prime Minister Morawiecki has stated that more than 80 percent of Poles are in favor of remaining in the bloc. On October 27, Poland was fined one million Euros per day for not complying with the EU court order to suspend the country’s disciplinary mechanism for judges. The European Commission has also threatened the country with sanctions if they continue to reject EU law.
Ongoing Situation
The dispute between Warsaw and Brussels is in a stalemate. The PiS party has been in a power struggle with the EU since coming to power in 2015. As a populist, conservative party, many of the party’s ideologies clash with those of the EU. However, Poland is dependent upon the EU for economic and social growth. Since becoming a member of the EU, Polish citizens have had access to jobs and other social benefits throughout western Europe. The EU views Poland as its window of opportunity for Eastern European expansion. Despite support for Poland from other entities, such as the United Kingdom’s Prime Minister, Boris Johnson, the Polish Prime Minister has reassured that they will not be leaving the EU.
However, the tribunal’s ruling may lead to more fines and sanctions from the European Commission, which will either prompt the Polish tribunal to rescind their ruling or will force Poland to leave the EU. Experts thus say there are three potential solutions that may play out in the near future:
- An infringement from the European Commission that would legally challenge the tribunal’s ruling (potentially leading to fines);
- Implementation of a conditionality mechanism where EU funds would be withheld from Poland;
- The application of Article 7 of the EU’s treaties – this would suspend the implicated member state, since they violated central values and laws of the bloc, from holding certain EU based rights.
Future of Poland and the EU
This dispute has called into question the foundations of the EU and the extent to which Poland can challenge the legality of the treaty into which it entered in 2004. By disputing EU law, Poland considers itself to be above the outlines of the binding agreement of the EU itself, which some fear may cause other EU nations to follow suit, compromising the basis of the EU itself. On the other hand, Poland claims that EU law goes against the founding principles of its own constitution, and such contradictory terms run counter to the democracy of the nation. While the EU has launched an investigation and legal action against Poland in an effort to prevent a “Polexit,” the ramifications of the dispute, regardless of the outcome, remains yet to be seen.