Tuesday, December 7

‘Polexit’: Will Poland’s ‘nuclear attack’ on the EU legal order cause the country to leave the bloc?

In a decision that shocked Europe, Poland’s constitutional court ruled on Thursday that the country’s laws had supremacy over those of the European Union.

The long-awaited ruling says that some parts of the EU treaties and court rulings go against Poland’s highest law.

Jakub Jaraczewski, research coordinator for Democracy Reporting, called the move a “massive escalation of the crisis of the rule of law in Poland.”

“This is unprecedented. We have an EU member state that basically claims that the primacy of EU law, one of the central ideas of the common legal order of the European Union, is not partially effective in Poland. This has not happened before, “Jaraczewski told Euronews. .

Laurent Pech, professor of European law at Middlesex University, compared the ruling to a “nuclear attack on the EU legal order.”

“As soon as the ruling is published, Polish judges will have to choose between violating EU laws or disobeying the constitution. So if they don’t violate EU laws, because they have a duty to apply the rules of the rule of law. of the EU under the treaties, then they are going to face disciplinary proceedings and possibly criminal proceedings as well, “said Pech.

The Polish verdict drew strong condemnation from the EU executive and the main parties in the European Parliament. The European Commission said the ruling “raised serious concerns” and suggested that Warsaw could expect a strong response from Brussels.

“The Commission will not hesitate to use its powers under the Treaties to safeguard the uniform application and integrity of Union law,” the statement said.

The EU has never seen the judicial system of a member state so openly challenge the foundations of the bloc. So what kind of ramifications will the Polish ruling have in practice?

Euronews explores how the unprecedented verdict will affect Warsaw’s relations with Brussels in the future.

Where did the failure come from?

Since the right-wing Law and Justice party came to power in Poland in 2015, it has been accused of taking steps to control the judiciary, including placing loyalists in a judicial appointing body, forcing the retirement of some court magistrates. Supreme and establish a legal court. room with authority to discipline judges and prosecutors.

In March, the European Court of Justice ruled that new Polish regulations for the appointment of judges to the Supreme Court could violate EU law, which takes precedence.

The ruling of the Court of Justice of the European Communities forced the government to get rid of the new regulations and respect the independence of the judiciary.

This prompted Polish Prime Minister Mateusz Morawiecki to petition the Constitutional Court to initiate a review of the supremacy of the law, which began in July.

The court majority said on Thursday that Poland’s membership in the EU since 2004 did not give the European court supreme legal authority and did not mean that Poland had transferred its legal sovereignty to the EU. He said that no state authority in Poland would consent to an external limitation of its powers.

Pech stressed that the decision came from an “illegal” court that has been widely criticized for its lack of independence.

“The Constitutional Court of Poland has been widely described as a ‘captured’ court or a ‘puppet court’. Therefore, this is not really a serious court. It did essentially what the ruling party wanted the court to do, which is avoid the application of the rules of EU law in Poland “.

Gerald Knaus, Chairman of the European Stability Initiative, a group of experts, pointed to a July ruling of the Court of Justice of the European Communities referring to a “structural collapse” of the Polish judiciary, which “no longer makes it possible to preserve the appearance of independence and impartiality of justice and the confidence that the courts should inspire a democratic society or to dispel any reasonable doubt in the minds of individuals. “

For Knaus, the Polish verdict on Thursday “surprisingly won’t make much difference” and the whole question is whether the July decision of the European Court of Justice will be implemented.

How can Brussels respond?

Experts interviewed by Euronews said that the EU had a wide range of legal, financial and political tools available to respond to the Polish verdict.

The European Commission has yet to unlock the payment of billions of euros to the country from the EU’s COVID recovery fund. It is quite possible that he will refuse to sign up for the 57 billion euros planned for Poland.

“This is a lot of money that they were waiting for, and I can’t see this money being paid now with this decision,” said Green MEP Daniel Freund.

The European Commission could make EU funding conditional on respect for key EU values, such as the rule of law and judicial independence. But it has yet to get approval from the European Council, which includes leaders of EU countries.

“The rule of thumb for all EU funds to be paid is that when there is no functioning justice system, money cannot flow. Therefore, the Commission has a relatively quick lever that they can pull and that they must pull to money should stop flowing immediately until justice is properly restored in Poland, “Freund continued.

On the legal side, Knaus told Euronews that the European Commission “had already done the most important thing by going to the Court of Justice of the European Communities with an infringement procedure.” Now, he added, the Commission must go back to the European Court of Justice and ask it to enforce its ruling with a fine.

Jaraczewski told Euronews that the ECJ had multiple pending cases regarding Poland and that it could use them as an opportunity to suspend, for example, common judicial cooperation mechanisms with Warsaw, such as the European arrest warrant.

“In addition, other EU member states could take action, not only politically, but also bring cases against Poland to the ECJ for damage to the rule of law and damage to the common legal order of the EU,” Jaraczewski said. He cited a recent precedent when the Czech Republic brought Poland before the European court for environmental damage.

“I think we have seen an increase in the determination of the EU in the last six to nine months, they have started to take stronger action and they have started to initiate more infringement procedures, and they have started to wake up,” said Garvan Walshe. Former foreign policy adviser to the British Conservative Party and chairman of Unhack Democracy, a Brussels-based non-profit organization.

“Brussels has to stand firm, it cannot speak of a reasonable compromise here. If the Polish Constitutional Court had its way, many other constitutional courts would follow and it would undermine the principles of EU law that have been in place since the 1960s. “. and 70, “Walshe told Euronews.

Knaus added that “effective communication”, both from the EU executive and influential member states, would be essential to convey to the Polish public that their movements to defend the EU legal order are not against Poland, but that they “have no another option “than to react to such an existential issue.

Is it the first step of Polexit?

Various voices in Brussels said the Polish verdict brought the country closer to a so-called ‘Polexit’.

“A Polexit of the EU legal order seems to be inevitable. In fact, it makes cooperation impossible,” said Renew MEP Sophie in ‘t Veld.

But government spokesman Piotr Mueller said the verdict had no effect on areas of the EU treaties such as competition, trade, consumer protection and the exchange of services and goods. He claimed that the higher courts of Germany, France, Spain and other EU nations have also maintained the primacy of national laws.

For Pech, Polexit “has already begun.”

“It started in July when they denied the validity of all the CJEU orders,” the law professor told Euronews. “This is simply not acceptable or compatible with being a member of the European Union.”

“I would not refer to this Polexit as Poland leaving the European Union,” insisted Jaraczewski. Such a departure would not be a popular decision, as an estimated 80% of people in Poland support the country’s membership in the EU.

“What I think could happen is a kind of ‘legal Polexit’, a removal of Poland from parts of the legal sphere of the European Union, making it a country that does not fully participate in the European Union as a member state of the European Union should be. full right, “he added. the researcher said. “And that can result in a very damaging situation both for the European Union, as well as for Poland and the Polish people.”

Knaus said that this scenario was “worse than Brexit” in the sense that it could lead to the collapse of the EU legal order.

What will be Warsaw’s next moves?

The Polish government has yet to publish the ruling in the Journal of Laws, a necessary step for the decision to take effect.

While it is usually done in a matter of days, it took the government three months to publish the controversial court ruling in October last year that bans legal abortion in the country.

“It is possible that the Polish government will now refrain from publishing this ruling and send a message to the Commission, please back off, or we will publish this and set fire to the legal order of the European Union,” Jaraczewski said.

“I think the Polish government and the Polish prime minister have been exaggerating,” the researcher told Euronews. “Some people in the Polish government may think that those are tough tactics that will make the European Commission resign and unlock the recovery fund.”

“But I think they have grossly underestimated the potential legal and political consequences of this decision.”

A crucial development to watch from Warsaw is how the Polish judges will react to the ruling, Jaraczewski told Euronews.

“Something very important that needs to be traced now is how the Polish judges, not only in Warsaw but also in the small towns of the cities, will have the integrity and the courage to fight against the ruling of the Polish Constitutional Court and will respect the premises. of the EU law, despite the danger of having a disciplinary process against them, despite the danger that they will be intimidated and harassed by the government. And it falls a lot on the individual courage of these people “.

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