On Thursday, October 7, the Constitutional Court of Poland, a court that is not completely independent and is partially composed of illegally appointed judges, rendered a challenging verdict which apparently found several provisions of the Treaty on European Union incompatible with the Polish Constitution. How should the European Union react?
The Polish case, presented personally by Prime Minister Mateusz Morawiecki, was presented as a question about the primacy of EU law and the relationship between the Polish Constitution and the EU treaties. But, in fact, it was far from being a sincere effort at judicial dialogue. Between the lines of the prime minister’s statements in the case and the court’s opinion, a clear picture emerges that this case is an attempt to provide the Polish government with legal cover for its actions regarding the independence and integrity of the Polish courts.
Since taking power in 2015, the government formed by the ruling Prawo i Sprawiedliwość (PiS) party has continued to undermine the independence of Polish judges and dismantle checks and balances aimed at maintaining separation between the branches of power in Poland. The judges were forcibly transferred from one division of the court to another or suspended entirely from their posts. Overnight, prosecutors were ordered to move to another office 500 km away.
Belatedly, and initially not strong enough, the European Union reacted to these threats: the European Commission launched multiple infringement proceedings against Poland and the EU Court of Justice (CJEU) issued increasingly damning rulings on these controversial ‘reforms’ . In interpreting the treaties in the light of these developments, the CJEU began to instruct Polish judges to fully apply the old principle of the primacy of EU law over national laws and thus avoid further erosion of the democratic foundations of the country.
Naturally, the Polish government did not appreciate this energetic interference in its plans to subjugate the judiciary. At first, the government focused on delaying and paralyzing European Commission requests with insincere dialogue and bypassing the rulings of the European Union Court of Justice, while presenting the situation as a problem. disagreement in good faith on how the European Union should be established.
This year, such a turn became increasingly untenable after the European Court of Human Rights, a body unrelated to the EU, found that various elements of the Polish “reforms” amounted to violations of the European Convention on Human Rights. Faced with international pressure, Warsaw opted to up the ante and turned to the Constitutional Court in search of a legal crutch that the government could use to justify its dismissal of the CJEU rulings and its persecution of Polish judges who refuse to concede and continue. . respect EU law. The court provided exactly that.
The court’s decision last week is another escalation of this crisis. Legally, the EU institutions and the other member states are not bound by the unprecedented ruling. It is to be hoped that the other courts of the Polish judiciary will refuse to respect an erroneous decision issued by a faulty court.
Is the crisis a “Polexit”? Hardly, since a ruling by a court for political reasons cannot be compared with the activation of Article 50, a formal decision to leave the EU that must be taken by a government, usually after a referendum, as in the British case. But the consequences of Warsaw’s aggression on the EU legal order could be far-reaching, potentially turning Poland into a second-class member of the bloc.
The CJEU could, for example, conclude that the rule of law in the country has eroded to the point where EU legal cooperation systems, such as the European arrest warrant, can no longer be applied vis-à-vis Poland. This potential “legal Polexit” could end with Poland being partially placed outside the EU legal order, an incredibly damaging outcome for everyone involved.
The EU must respond to the challenge. There are several tools for Brussels to use. Commission infringement procedures followed by filing a case with the CJEU are a natural option, although this option has been tested with Warsaw, with questionable results.
But much more effective is the application of financial pressure. The Commission is already withholding approval of Poland’s € 36 billion recovery plan and is waiting for the CJEU to impose daily fines on Warsaw for its refusal to enforce an earlier Luxembourg verdict.
The new rule of law conditionality mechanism, which links the payment of EU funds to respect for fundamental rights, could finally be activated after almost ten months of inaction. This mechanism faces legal challenges Hungary and Poland before the Court of Justice. But the arguments of both countries are weak, and their case before Luxembourg is a clear attempt to hamper the Commission’s efforts. Brussels should not wait for legal procedures to be completed before activating the mechanism and suspending EU funds to countries that violate EU law.
The other member states should not sit idly by either. While several capitals issued strong statements after last week’s verdict and expressed their full support for the Commission, there is room for diplomacy and pressure to help Brussels.
Fundamentally, other countries could sue Poland before the CJEU for damage to the rule of law and danger to the legal order of the EU. Such cases would prove that their rhetoric is backed up with concrete actions and could produce quick effects if the plaintiffs requested interim measures to stop some of the most egregious actions of the Polish government.
Some capitals, however, see this type of demand as too political and too risky for bilateral relations. These concerns did not prevent the Czech Republic, Poland’s neighbor and often loyal partner, from launch an interstate case concerning the environmental damage caused by a Polish power station in Turów. The Czechs were not held back by the prospect of embittering relations with their friends, and neither should other EU countries that pride themselves on being “friends of the rule of law”.
Beyond that, member states should not accept framing this situation as a “Poland versus the European Union” conflict. Poles don’t want to leave the unionDespite a highly polarized society, public opinion polls suggest that the EU is much more popular than the PiS government itself.
Poland’s partners in the EU should tangibly demonstrate that they are on the side of independent judges and prosecutors who are under increasing pressure. There is no use in doubting.
Jakub Jaraczewski is a research coordinator at Democracy Reporting International (DRI), a Berlin-based group that analyzes democratic developments around the world.
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George is Digismak’s reported cum editor with 13 years of experience in Journalism