Polexit? The Polish Constitutional Court rules EU laws incompatible with the Member State’s Constitution

It may be stated that the Polish Constitutional Court has been the centre of various news scandals. Its legitimacy has been frequently questioned due to the appointment of multiple judges. These judges happen to sympathise with the views of the nationalist ruling party PiS. In addition, the chief of the Constitutional Tribunal, Julia Przyłębska, who was appointed in 2016 through an alleged breach of procedures, is a close friend and associate of PiS chairman Jarosław Kaczyński.

Earlier this month the Polish Constitutional Court ruled that some specific EU rules are incompatible with the Member State Constitution, the country’s highest law. The tribunal alleged, in the ruling, that it has the right to check the constitutionality of European Union law as well as that of the rulings of the CJEU. “No organ of the Republic of Poland can allow such a state” to exist, said judge, Bartłomiej Sochański. It is “inconsistent with the constitution”.

These findings were accepted with open arms by the members of the PiS.

The case began after the Polish Prime Minister Mateusz Morawiecki asked the Court whether or not the EU could prevent Poland from reorganising its judicial system. He also asked the Court to confirm the supremacy of Polish law over that of the Union. This seeing as the leading party has expressed interests in reforming the system in order to render the courts more efficient and to eliminate the remainders of the communist era.

The Commission reacted to the rulings reaffirming the primacy of EU law over the national law of the Member States. Not only are the Treaties legally superior to national law, the rulings of the CJEU are, as well, binding on all the MSs of the Union. The European Commission has the task of safeguarding the proper functioning of the Union’s legal order and it will continue to ensure that. The Commission has made it clear that it will not hesitate to use these powers.

Other Member States of the Union reacted in polarizing manners vis-a-vis the Polish ruling.

The foreign ministers of Germany and France issued a joint statement supporting the European Union, more specifically the Commission in its role of guardian of the Treaties. In said statement they declared that “membership of the European Union goes hand in hand with full and unconditional adherence to common values and rules”. According to them, compliance with these principles, both morally and legally, is a responsibility of all MSs.

Viktor Orban, the Hungarian Prime Minister, on the other hand signed a government resolution embracing the Polish ruling. The resolution calls on the EU to respect the sovereignty of MSs as well as the different national identities. More precisely the law enforcement bodies and mainly the Constitutional Courts. Following the resolution “The primacy of EU law should only apply in areas where the EU has competence, and the framework for this is laid down in the EU’s founding treaties”. Not only so, this document blames the Polish Constitutional Court ruling on the European Union’s actions, the poor practices of the EU triggered the consideration of the legal primacy issue.

This decision, on behalf of the Polish Court, does however come at a cost as it will hinder the relations between Brussels and Warsaw. The so called legal “polexit” is slowly becoming a reality. In addition, this comes at a time of high tensions due to the impending approval of the EU recovery fund. The fund would provide the Member State with 57 billion euros. As stated by Jeroen Lenaers, a member of the European Parliament “Our money can’t finance governments which mock and negate our jointly agreed rules. By declaring that the EU treaties are not compatible with Polish law, the illegitimate constitutional tribunal in Poland has put the country on the path to Polexit”.

In fact, the Commission may approve the national recovery plans for Poland and Hungary in November; however that will go hand in hand with a set of conditions. The fund, that has already received the green light in all the 25 other MSs, will be disbursed if the Country Specific Recommendations issued by the EU are met and respected. Since January 1st, an additional layer of protection is also in place thanks to the rule of law mechanism.

It must be mentioned that this sum of money would not only help the MS recover from the Covid-19 crisis, but it would also allow the anti-European PiS to gain support for the upcoming 2023 elections.

The strong Eurosceptic atmosphere found in the Polish government and judiciary is beginning to be found in the citizens themselves. According to a recent poll, for the first time since Poland joined the Union in 2004 one fifth of the Polish population agrees with “Polexit”. The large majority however supports the Union and wishes to remain part of it. Most citizens see the national-conservative government’s judicial policies as an attempt to violate the rule of law and support the EU’s intervention over the issue.

The trend that Poland has been following in the past months seems to be continuing and the resolution and strengthening of the ties between Warsaw and Brussels seems complex and uncertain. As Robert Kropiwnicki, a legal scholar argues, the ruling gives Poland three choices: it can amend its own Constitution, try to change the European Treaties, or leave the EU. All that is left it to see which one becomes a reality.