Poland’s Constitutional Court ruled Thursday that the country’s laws take precedence over those of the European Union, in a decision that sent shockwaves across Europe.
The long-awaited decision states that some parts of EU treaties and court decisions are in conflict with the highest Polish law.
Jacob Jarajowski, research coordinator at Democracy Reporting, called the move “a massive escalation of Poland’s rule of law crisis”.
“It is unprecedented. We have an EU member state that states, in principle, that the primacy of EU law, which is one of the basic ideas of the EU’s common legal system, is partially ineffective in Poland. This has not happened before, ” Jaragoski told Euronews.
Lauren Beach, professor of European law at Middlesex University, likened the decision to “a nuclear strike on the European Union’s legal system”.
“Once the decision is announced, Polish judges will have to choose between violating EU law or not complying with the constitution. Therefore, if they do not violate EU law because they have a duty to apply EU standards in the area of rule of law and under treaties, they will face disciplinary action and possibly even criminal proceedings. .”
The Polish decision strongly condemned the EU executive and the main parties in the European Parliament. The European Commission said the decision “raised serious concerns” and indicated that Warsaw could expect a strong response from Brussels.
“The Commission will not hesitate to use the benefits of its treaty powers to protect the uniform application and integrity of Union law,” the statement said.
The EU has never seen a member state’s judicial system openly question the bloc’s foundations. So what are the consequences for the Polish government in practice?
euronews is looking at how the unprecedented decisions will affect Warsaw’s relations with Brussels in the future.
Where did the ruling come from?
Since the right-wing PiS came to power in Poland in 2015, it has been accused of taking steps to control the judiciary, including appointing believers to the Judicial Appointment Office, forcing some Supreme Court judges to retire and creating a statutory body. . A room with the power to preach to judges and prosecutors.
The European Court of Justice ruled in March that new Polish rules for appointing Supreme Court judges could conflict with EU law, which takes precedence.
The European Court of Justice ruling obligated the government to abandon the new rules and respect the independence of justice.
This prompted Polish Prime Minister Mateusz Morawiecki to ask the Constitutional Court to begin a review of the rule of law, which began in July.
The majority court said on Thursday that Poland’s membership in the European Union since 2004 did not give the European Court the highest legal authority, which does not mean that Poland transferred its legal sovereignty to the European Union. She said that no government body in Poland would agree to an external limitation of its powers.
Beach claimed that the decision came from an “illegal” court that has been widely criticized for its lack of independence.
The Polish Constitutional Court has been widely described as a “guardian” or “puppet court”. So this is not a really serious court. In principle, he did what the judicial party wanted the court to do, which was to prevent the application of EU law. Standards in Poland.
Gerald Knaus, President of the European Stabilization Initiative, think tank, points for The European Court of Justice ruling in July that noted the “structural breakdown” of the Polish judiciary, which “no longer allows the emergence of independence, impartiality of justice and confidence that courts should inspire or dispel any reasonable doubt in the minds of individuals in a democratic society.”
For Knaus, Thursday’s Polish decision “will not change much at once” and the whole question is whether the July ruling by the European Court of Justice will be implemented.
How will Brussels react?
Experts interviewed by Euronews said the EU has a wide range of legal, financial and political tools at its disposal to respond to Polish decisions.
The European Commission must open up to the country paying billions of euros from the EU’s COVID Reconstruction Fund. It can refuse to participate in the 57 billion euros allocated to Poland.
“That’s a huge amount of money they anticipated, and I don’t see the money being paid under that decision right now,” said Green MEP Daniel Freund.
The European Commission could make EU funding conditional on respect for core EU values, such as the rule of law and the independence of the judiciary. But it has not yet received the approval of the European Council, which includes the leaders of European Union countries.
“The rule for paying all EU money is that in the absence of an effective judicial system, the money cannot flow. The commission therefore has a relatively quick means of making a choice, and should choose to stop the flow of money immediately so that justice can be properly restored in Poland,” Freund continued.
From a legal point of view, Knaus told Euronews that the European Commission “has already done the most important thing by going to the European Court of Justice in violation”. He added that the Commission now needed to return to the European Court of Justice and ask it to implement its fine decision.
Jaraczewski told Euronews that the European Court of Justice has several cases before Poland, and could use it as an opportunity to suspend, for example, mechanisms for joint judicial cooperation with Warsaw, such as the European arrest warrant.
“Other EU member states can take action, not only at the political level, but also to sue Poland before the European Court of Justice for harming the rule of law and the EU’s common legal system,” Jaraczewski said. . He cited a recent precedent when the Czech Republic represented Poland before the European Court of Environmental Damage.
Garvan Walsh, a former foreign policy adviser to the British Conservative Party and head of the Unhack Party, said. , a non-profit organization based in Brussels.
“Brussels has to stand firm, it cannot speak of a reasonable compromise here. If the Polish Constitutional Court finds its way, many constitutional courts will follow, undermining the principles of EU law in force since the 1960s and 1970s,” he said. “.
Knaus added that “effective communication” from both the executive branch and influential EU member states would be necessary to inform the Polish public that its actions in support of the EU’s legal system were not hostile to Poland, but that it had “no choice”. Who responds to such an existential problem.
Is this the first step in Polexit?
Several voices in Brussels said the Polish government had brought the country closer to the so-called “Polexit”.
“It seems that politics from the EU legal system has become imperative. This effectively prevents cooperation,” said Sophie MEP Sophie of t Veld.
But government spokesman Piotr Mueller said the decision had no impact on EU treaty areas such as competition, trade, consumer protection and the exchange of services and goods. He said higher courts in Germany, France, Spain and other EU countries have also confirmed the primacy of national law.
In Pech Polexit “already started”.
“It started in July when they rejected all the regulations of the European Court of Justice,” said Euronews’ professor of law. This is unacceptable and incompatible with EU membership.”
“I would not describe Polixit as Poland’s withdrawal from the European Union,” Jaraczewski insisted. Such an exit would not be a common decision, given that an estimated 80% of people in Poland support the country’s membership in the European Union.
“I think that something like a ‘legal policy’ could happen, which would take Poland out of parts of the EU’s legal space and become a country that does not fully participate in the EU as it should, as a whole country,” the researcher said. . This could lead to a very harmful situation for the European Union, Poland and the Polish people.
Knaus said the scenario was “worse than Brexit” in the sense that it could lead to the collapse of the EU’s legal system.
What are the next steps for Warsaw?
The Polish government has not yet published the ruling in the Official Gazette, a necessary step for the decision to enter into force.
Although this is usually done within a few days, it took the government three months to publish a controversial court ruling in October last year banning legal abortions in the country.
“It is possible that the Polish government will not publish this decision now and send a report to the Commission, please step down or else we will publish it and set fire to the EU legal system,” Garajowski said.
“I think the Polish government and the Polish prime minister used their hands excessively,” one Euronews researcher said. “Some people in the Polish government may think that this is a difficult tactic that will force the European Commission to step down and open a reconstruction fund.”
However, I think they have greatly underestimated the potential legal and political consequences of this decision. “
One of the main developments to follow from Warsaw is the reaction of the Polish judges to the decision, Jaraczewski told Euronews.
“One of the very important things to watch now is what Polish judges will do, not only in Warsaw but also in small towns and villages, whether they have the integrity and courage to resist the decision of the Polish Constitutional Court and abide by the principles.” EU law, despite the risk of disciplinary action against them, although they are seriously intimidated and harassed by the government. It largely depends on the courage of these individuals. “
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