Judicial Rebellion. How Poland Walked Half Way Out of the EU
Fabio Turco 8 October 2021

Warsaw and Brussels have never been more at odds. The Polish Constitutional Court ruled that European law does not take precedence over the Constitution. Certain provisions of the European treaties that regulate how Union laws relate to national ones were under review. The provisions were declared unconstitutional by the President of the Tribunal Julia Przyłębska, motivated by the fact that they would prevent Poland from functioning as a sovereign and democratic country. It was also noted that European bodies act outside the power conferred on them by the treaties, and that under these conditions the Constitution ceases to be the supreme law of the Polish republic.

Prime Minister Mateusz Morawiecki addressed the Constitutional Court last March, after the European Court of Justice had defined the Polish judicial reform approved by his government as incompatible with European law.

The sentence is not completely unexpected. The Polish Constitutional Court was the first body to be “captured” by Law and Justice, the conservative party that has ruled the country since 2015. All 15 justices that currently make up the Constitutional Court are aligned with the ruling party: a body that by most is considered an instrument in the hands of the executive.

During the five hearings held before the final pronouncement, the only institutional representative who defended the European treaties was the Ombudsman Marcin Wiącek and his staff. Observing the attitude of most of the judges, there was immediately little doubt as to what the outcome would be.

To enter into force, the sentence will now have to be published in the official gazette. However, similarly to what happened last year as regards the sentence concerning abortion, it is plausible to think that it will not be immediate.


Political bomb

Yesterday’s pronouncement is a veritable attack on the foundations of the European Union, and it is reasonable to expect the Commission will take countermeasures. The risk that other sovereignist-leaning countries will decide to imitate Poland is too high.

For the moment, the reply has been a concise statement, which reaffirms the primacy of European laws over national ones, and which emphasizes how the judgments of the European Court of Justice are binding to the members of the Union.

It is also emphasized that the Commission will not hesitate to use all the powers established by the treaties to safeguard the integrity of European law.

On the opposite front, the Minister of Justice Zbigniew Ziobro hailed the ruling of the Court as a sentence of historic significance, which sets the limits of European integration and interference from Brussels.

Donald Tusk, leader of the opposition and former president of the European Council, has instead called for protests in defense of a pro-Europe Poland for Sunday at 6 pm.


In or out?

The specter that is stirring in the minds of many is that of Poland’s exit from the European bloc. On this point the leader of the Law and Justice Party, Jarosław Kaczyński, clearly spoke a couple of weeks ago, when he ruled out any possibility of a Polexit. Polls indicate that this possibility would be unwelcome to the Poles. According to an IPSOS survey released a few days ago, 88% of people do not want to leave the Union. At the same time, however, half of the interviewees feared that the government would take this path.

The same fear can be sensed in the communiqué issued by the European People’s Party, which states how difficult it is to believe the assurances of the Polish authorities about their willingness to remain among the 27, when their actions lead seem to be moving in the opposite direction.

One possible scenario is that the publication of the sentence will be “frozen” waiting to see what the European Union will do. Keeping the situation in the “freezer” would provide Warsaw with the possibility of having a weapon with which to coerce the opposition.


Threats and sanctions

The timing of the sentence intersects with another issue that has been dragging on for some months: the Recovery Fund.

The question being debated at the judicial level had led the European Commission to freeze the € 57 billion that Poland is entitled to from the Next Generation EU fund. In recent months, Warsaw had refused to comply with the order to suspend the activity of the Disciplinary Chamber of the Supreme Court, a judicial control body introduced in the latest justice reform, which severely limits the independence of judges. The letter sent in mid-August by the government, promising the suspension of the activity, was worthless. The reassurances must have seemed convincing to Brussels. At the beginning of September, the European Commissioner for the Economy, Paolo Gentiloni made this problem known and high-level negotiations had begun to reach an agreement. A few days ago, however, Morawiecki declared that Poland could do without the funding. A statement that is hardly credible, but a symptom that the dialogue had come to a standstill.


It is becoming clear that the European Union has decided to use the financial lever as a deterrent for rebellious countries. Like Poland, the only other country for which the Recovery Fund has been blocked is Hungary.

For its non-compliance in the case of the Discipline Chamber, the Commission asked the European Court of Justice to apply pecuniary penalties to Poland. They would not be the first. Last May, the highest European court ordered Warsaw to end the activities of the lignite mine in Turów, in the southwest of the country. The plant is located on the border with the Czech Republic, which has reported a draining effect on its aquifers. Even in that case, Poland did not comply with the sentence and was fined 500,000 euros for each that the plant remained in operation.

Another battle front in recent months had been those of the rights of the LGBTQI+ community. In the last two years, a hundred local authorities and five voivodships (Polish regions) have signed resolutions against LGBTQI+ ideologies. After launching an infringement procedure, the Commission sent letters to the five voivodships threatening to block their intended React Eu funds. Within a few weeks, four of the five (Precarpathia, Santacroce, Lublin Voivodeship, and Lesser Poland) withdrew the resolution. To date, only the Łódź Voivodeship has maintained the resolution.

A small glimmer of positivity amid a confrontation that is heading evermore into uncharted terrain.


Cover Photo: A demonstration against Poland’s “Unconstitutional Court” ahead of its ruling on the primacy of Polish or European law – Warsaw, August 31, 2021 (Wojtek Radwanski / AFP).

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