Poland is locked in a legal battle with the European Union over the legitimacy of legal and constitutional reforms exercised by its Conservative ruling party that could trigger Poland’s withdrawal from the EU bloc.
Under the leadership of the Populist Party for Law and Justice (PiS), the Polish government has pursued extensive reforms that it says are necessary to fight corruption, but critics say they are expanding the government’s powers and defying the democratic values that EU law upholds. Poland’s abortion rights are being lifted with a near-ban imposed in January, despite months of violent street protests, while LGBTQ groups and the freedom of expression of everyday citizens have also been attacked.
But the differences between Warsaw and Brussels deepened on Wednesday and took a more hostile turn when Poland’s constitutional court defied a ruling by the European Court of Justice against Poland’s controversial legal reforms. The Polish Constitutional Court, the country’s highest court, said the decision did not comply with the constitution.
The gap over the legitimacy of EU law only arose in February 2020 when Poland adopted new measures to prevent judges from referring cases to the European Court of Justice. Poland argues that in domestic matters concerning courts and tribunals, it is up to the Polish authorities and legislation, and not Brussels, to decide.
Wednesday’s ruling was “against the interference, usurpation and legal aggression of European Union bodies,” said Polish Justice Minister Zbigniew Ziobro, who is in charge of judicial reform.
The ruling follows a previous decision by the European Court of Justice to issue an interim decision for Poland to immediately suspend work in Poland’s newly established “disciplinary department” – an exit from the Supreme Court set up as part of the government’s comprehensive judicial reform to discipline judges and prosecutors.
PiS has been accused of using the disciplinary chamber to either fuck judges or follow them for political reasons. A judge is currently serving up to three years in prison on a disciplinary charge after suffering from PiS.
Some EU states, such as Ireland and the Netherlands, have already stopped extradition to Poland, citing the division of the country’s rule of law. Many legal experts agreed that the decision of the Polish Constitutional Court was a deliberate step in undermining EU law.
In response to the Polish Constitutional Court’s claim that Polish judges are not EU judges, Alberto Alemanno, an EU law professor, said on Twitter, “Yet it is exactly what is happening in the EU legal system to which Poland belongs …”
The Polish “unconstitutional” court said:
“Polish judges do not become EU judges due to the application of EU law”
Yet that is exactly what is happening in the EU legal system to which # Poland belongs (by its own decision) # rules
– Alberto Alemanno (@alemannoEU) July 14, 2021
Former EU Council President Donald Tusk saw the Constitutional Court’s decision as a preliminary step towards leaving the EU altogether. Tusk said, “It is not Polandbut (leading party leader Jaroslaw) Kaczynski who is leaving the EU with his party.”
“Only we Poles can effectively oppose it,” said Tusk, Poland’s former prime minister who recently made a political comeback.
Poland’s independent human rights ombudsman, Adam Bodnar, told reporters that Poland “was engaged in a step-by-step legal Polexit”.
Poland joined the EU in 2004, but long-standing differences have put Warsaw and Brussels on a collision course, a result of PiS moving forward with an ever-growing conservative reform agenda.
Like Poland, Hungary has distanced itself from EU liberalism and incited other EU members to become involved in their national affairs. Both countries have squeezed freedom of expression at universities, driven out left-wing ideas and NGOs, and kept a close eye on the media and the judiciary, while ignoring the EU’s attempts to curb its actions.
The EU defends values
However, the EU was preparing to strike back. On Thursday, it initiated legal action against Poland and Hungary for violations of fundamental rights concerning LGBTQ rights. In relation to Poland, the European Commission has accused Polish authorities of not “responding fully and appropriately to their inquiry into the nature and effects of this so-called” LGBTQ ideology-free zones “resolutions” adopted by several Polish regions. EU proceedings against Hungary concern an antipedophilia law from June that bans or restricts LGBTQ content for those under 18 years of age.
FRANCE24’s Brussels correspondent Dave Keating said no country showed signs of receding and it was likely the case would go to court, even though the European Commission’s legal bases were shaky, especially against Poland.
“It may be that this will be decided on certain technical internal EU market rules rather than on violations of fundamental rights,” Keating said of the infringements.
Some legal observers warned that any attempt to fine some Member States and not others for non-compliance with decisions taken by the European Court of Justice would be illegal and further breach trust within the bloc. On the other hand, if it is not challenged, it could lead to the dissolution of EU law.
“European law is no longer effective if you apply it in one country and not in another. Your legal system has passed, says Kees Sterk, senior Dutch judge and professor at Maastricht University, to the Financial Times.
The Polish government may well be encouraged by the states that have and continue to test the limits of EU law and the values on which these laws are based. A Polexit, in this context, may not be so far-fetched, although surveys show that most Polish values remain in the EU. Polish nationalists can even propose the precedent created by Brexit to give legitimacy to their own claims to constitutional sovereignty.
However, the EU will not give in so easily to infringement of rights and values. And, as Brexit showed, it is unlikely to go out without further vacuuming and a hassle of hostilities with the EU.