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27th Nov 2021

Poland's EU future questioned after snub to bloc's top court

  • Warsaw: The vast majority of Polish people want to stay in the EU (Photo: Kamil Porembinski)

Poland has taken a first step over the rubicon in its war on EU law by saying the EU's top court has no authority to impose an injunction on its legal reforms.

The EU court, in 2020, had ordered Poland to suspend a new judicial disciplinary chamber because it was stuffed with political loyalists of the ruling Law and Justice (PiS) party and looked like an instrument to bully judges to toe the line.

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The EU court repeated its appeal for Poland to obey in a statement by its vice-president on Wednesday (14 July).

And its final ruling in the disciplinary chamber case could come as early as Thursday.

But Poland's Constitutional Tribunal, which is also stuffed with PiS loyalists, said, later on Wednesday, that Poland was free to ignore EU court orders in this case because they were incompatible with the Polish constitution.

"With the best will to interpret the constitution, it is impossible to find in it the powers of the [EU] Court of Justice to suspend Polish laws concerning the system of Polish courts," Constitutional Tribunal judge Bartlomiej Sochanski said.

"Fortunately, the constitution and normality prevail over an attempt ... to interfere in the internal affairs of a member state, in this case Poland," Polish justice minister Zbigniew Ziobro, who wields direct authority over the disciplinary chamber, told press.

It also prevailed "against interference, usurpation and legal aggression by organs of the European Union", Ziobro added.

But the clash was just one step in Poland's wider conflict with the EU legal system.

Primacy case

The Constitutional Tribunal is also deliberating whether EU law or Polish law has primacy in the country more broadly speaking.

The wider case, initiated by Polish prime minister Mateusz Morawiecki, was due to be finalised earlier this week.

But the verdict is now expected to fall any time between Thursday and 3 August, according to court documents seen by Reuters.

The legal warfare comes amid a similar clash between Germany's Constitutional Court and the EU after the German court, last year, delayed a bond-buying programme by the European Central Bank on grounds it was against the German constitution, even though it had been approved by the EU court.

And for his part, EU justice commissioner Didier Reynders warned, on 1 July, that the German and Polish disputes risked unravelling the EU.

"What's the risk if we don't take care of this? That it will destroy the union itself," Reynders told the Financial Times.

But the Polish case is coloured by PiS' wider divergence from EU norms on judicial independence, media freedom, and LGBTIQ and women's rights.

It is also coloured by PiS' eurosceptic rhetoric, even though the vast majority of Poles support EU membership, according to surveys.

And if PiS and its judges ultimately decided the EU courts had no authority in Poland, that would amount to Poland leaving the EU in legal terms, PiS critics said on Wednesday.

Polexit?

"We are in the process of a legal 'Polexit' which is happening step by step, and we will see where it will lead us," Polish Human Rights Ombudsman Adam Bodnar said.

PiS was "leaving the EU" and "only we Poles can successfully oppose this", former Polish prime minister and EU Council president Donald Tusk, who now leads Poland's Civic Platform opposition party, added.

MEPs also weighed into the debate.

"The refusal to implement rulings of the European Court of Justice in Poland is a clear step towards taking Poland out of the European Union," Dutch centre-right MEP Jeroen Lenaers said.

"Against the wishes of the vast majority of Polish people who want a European Union future, the populist governing PiS party is determined to take Poland out of the EU", Belgian liberal MEP and former prime minister Guy Verhofstadt also said.

Any rulings favouring primacy of Polish law should prompt the EU to "immediately request daily financial sanctions … and suspension of EU funding," Laurent Pech, a professor of European law at Middlesex University in London, told The Guardian newspaper.

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The concern of Germany's Constitutional Court was that the European Court of Justice did not sufficiently check the action of other EU branches of power. The Polish situation is the exact reverse: the government is taking control of the courts.

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