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Last October, Poland’s constitutional court ruled that its national constitution takes precedence over the legal jurisdiction of the European Union (EU). The Polish ruling challenges the principle of primacy of EU law, according to which, in case of collision between national law and European law, member states must defer to the Court of Justice of the European Union (CJEU). As a response, the EU held off on approving the 23 billion euros in EU grants and 34 billion euros in cheap loans to help Poland recover from the COVID-19 crisis. In addition, the CJEU slapped Warsaw with a fine of 1 million euros per day, the highest ever to be imposed.
The Law and Justice Party (PiS), the largest political party in the Polish parliament, has been at odds with the EU concerning LGBTIQ and women’s reproductive rights, migration policy, the COVID-19 pandemic, and judicial reforms. Even though the EU’s popularity in Poland is, as surveys suggest, significantly high, ‘Polexit’ is, to many, a not-so-distant possibility.
THE ONGOING CONFLICT BETWEEN POLAND AND THE EU
Poland is often considered an “in-between state within the EU field of power, a state that occupied neither top nor bottom position in the field’s hierarchical structure”. Furthermore, Warsaw has been at odds with Brussels over matters such as the migration crisis, LGBTIQ and women’s reproductive rights, the pandemic, and the rule of law. Lurking behind each of these tensions is the resistance of the Polish state to acknowledge the power of the European Union in Polish domestic affairs.
PiS won the parliamentary elections in 2015, on the cusp of the migration crisis, which was a source of disagreement between Warsaw and Europe. Poland blamed Germany and European Institutions for creating this crisis by inviting migrants and expecting member-states to ‘share the burden in the form of national relocation quotas.’ The party leader of PiS, Jaroslaw Kaczynski, stated at the time that Poland has not opened Europe for refugees, but Ms. Angela Merkel.
“And it is Ms. Merkel and Germany that have to bear the consequences, not Poland.”
A migration crisis took place on Poland’s eastern border in the last months. A mass influx of middle eastern refugees arrived at the Polish eastern frontier, sent by the Belarus president, Alexander Lukashenko, in response to the EU sanctions imposed on Belarus. Polish NGOs have claimed that Poland sent these migrants back to Belarus in a violent and illegal manner under EU law. Poland is also suspected of refusing the entrance of journalists, NGOs, or any sort of civilian aid. Warsaw denies these accusations.
LGBTIQ and women’s reproductive rights
In the 2019 parliamentary elections, the far-right polish party, Konfederacja, secured almost 7 percent of the votes. According to the Konfederacja party’s agenda, ‘gender’ and ‘LGBT’ ideology are deemed as threats to traditional Polish and Christian civilization. They accuse LGBTIQ people of pedophilia, Christianophobia, and having intentions to destroy cultural traditions and the Polish Church. Since 2012, the Polish Catholic Church and some ultra-conservative organizations have campaigned against sex education, the ratification of the Istanbul Convention, and women’s reproductive rights.
From 2019, several Polish municipalities and regions adopted resolutions on the creation of so-called ‘LGBT-ideology free zones’, which goes against the EU core values of equality and respect for human rights. Consequently, the European Commission required “adequate and comprehensive information from the Polish authorities.” Although the Polish government denied having discriminatory laws against LGBTIQ people, the European Commission considered Poland’s response to the inquiry as unclear and inappropriate. In July 2021, the European Commission started legal action against Hungary and Poland for violating the fundamental rights of LGBTIQ people. As stated by President Ursula von der Leyen,
“Europe will never allow parts of our society to be stigmatized: be it because of whom they love, because of their age, their ethnicity, their political opinions, or their religious beliefs”.
The COVID-19 pandemic was one of the factors that incited Polish leaders, such as Polish Prime Minister Mateusz Morawiecki, PiS leader Jaroslaw Kaczynski, and Polish Justice Minister Zbigniew Ziobro, to affirm the lack of action by the EU. Justice Minister Ziobro has even stated that the EU’s “inefficiency and lack of understanding of the key challenges facing Europe are yet another shameful proof of EU’s utter disgrace”.
Moreover, these leaders declared that the EU failed to face the pandemic efficiently, accusing the EU of not helping Poland or any of the EU members in an outstanding way. The Polish leaders also asserted that the EU merely offered flexibility in funds that were already allocated to member states. In sum, Polish leaders believe the pandemic turbulent times clearly confirmed the importance of the Polish nation over the Union.
The Rule of Law
Poland challenging the principle of primacy of EU law intensified an ongoing quarrel Poland has been opposing over the years: the alleged inequality between EU member states. In essence, this conflict is about power dynamics within the union and the extent to which it can intervene in the national affairs of its members.
Ever since PiS came to power, it has been accused of reorganizing the traditional judiciary system, allegedly replacing constitutional judges considered ‘too liberal’ with party loyal conservatives and establishing a legal chamber with “the authority to discipline judges and prosecutors.” The European Court of Justice questioned this rule and obliged the Polish government to respect the principle of independence of judges. As a response, Polish Prime Minister Mateusz Morawiecki asked the Constitutional Court to decide on the supremacy of EU law over national Polish laws in July. That autumn Poland’s court ruled that some EU laws infringed on the Polish constitution, and, therefore, the sovereignty of the country.
In the words of Jaroslaw Kaczynski, the leader of PiS, “In Poland, the highest legal act is the Constitution and all European regulations that are in force in Poland (…) must comply with the Constitution. This also applies to the judiciary and the European Union has nothing to say here.”
THE POLISH RULING: MEANING AND IMPLICATIONS
This conflict is utterly significant. Not only because it questions the place of Poland in the EU and a possible ‘Polexit’, but also because it challenges core values of the EU, which are allegedly unclear to certain member states. Besides, it raises doubts on the span of EU law primacy, on the existence of double standards within the union, and, finally, on the competencies ascribed to the ECJ.
Joining the European Union is an act of sovereignty from each member-state. They accept the limitations on their power and declare to respect the EU treaties. When joining the EU, each member state is required to undergo a transition phase that consists of the revision of the legal system, including the States’ constitution, in order to harmonize it with EU treaties.
Accordingly, when entering the EU, member states are familiar with the principle of primacy of EU law. For instance, if a state’s national law, including their constitutional law, collides with the EU primary law, the latter takes precedence. Being part of the EU is a conscious and intentional decision. Its implications are introduced in the beginning. Member states know they are required to have independent judges, and Poland chose to abide by these laws in 2004.
Are there double standards?
The EU is being accused of double standards seeing as other member states have stated that their national law takes precedence over the EU law. Germany is the most recent case, but many others have occurred within the EU. According to Dave Keating, the Brussels correspondent for France 24, there is a significant difference between the Germany and Poland cases. In Germany, the Federal Constitutional Court’s ruling was about the European Central Bank’s bond-buying program, considered illegal under German law. While Germany’s judicial independence was never questioned, in Poland’s case, the Constitutional tribunal’s judges are being accused by the EU of having been politically appointed, and of refusing to follow EJC instructions on the independence of justice.
Article 5 of the EU Treaty declares that “[u]nder the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein”. This article has been often mentioned in defense of Poland’s actions in the conflict. Even though it is clear, from the moment a member state joins the EU, that the CJEU is the ultimate arbiter and the top level of the court system, this issue unveiled uncertainties regarding the competences belonging to CJEU. This undetermined character makes it complicated when conflicts like this arise. If it is unclear what the treaties declare, could it mean it is time for another revision?
IS POLEXIT ON THE HORIZON?
After the ruling, thousands of poles across the country went to the streets to demand to stay in the EU. Surveys suggest that more than 80 percent of people in Poland are happy in the EU, therefore, ‘Polexit’ seems to be a very distant reality.
Contrary to what the leader of the opposition, Donald Tusk, affirms, both Mr. Morawiecki and Jaroslaw Kaczynski insist that the so-called ‘Polexit’ is fake news and that Poland wants to stay in the EU. However, the conflict brought about existential anxieties for the union. This rebellion highlights the fragilities of the EU with some claiming that this conflict jeopardizes the European project as it could incite a ‘snowball effect.’ Moreover, given the harsh sanctions imposed on Poland, there is a high chance the Polish government could blame the financial and internal problems it will face on the EU.
In short, this existential European crisis, incited by Poland’s contestation, might instigate, even though unlikely, structural adjustments in the European project. These could include revising the treaties, reconsidering a European constitution, and even creating mechanisms to expel member states that continuously disrespect the core values of the union. However, the CJEU is going to decide on the affair and the most likely scenario is for it to become court jurisprudence serving as a reference for future analogous cases.
- Is it time for a revision of the EU treaties?
- Should the EU have a mechanism to expel member states?
- Could EU popularity in Poland decrease with the sanctions impose?
Glossary of summaries: Primacy of EU law.
Korolczuk, Elżbieta. “The fight against ‘gender’ and ‘LGBT ideology’: new developments in Poland.” European Journal of Politics and Gender, 2020. DOI:10.1332/251510819X15744244471843
“The law as a tool for EU integration could be ending”, by Stefan Auer, Pepijn Bergsen, and Hans Kundnani.