Poland’s government-engineered Constitutional Tribunal ruled on October 7 that some articles of the Treaty of the European Union (TEU) are incompatible with the Polish Constitution.
The ruling is the most serious swipe by Poland at the EU’s legal order that Warsaw had subscribed to when joining the bloc in 2004 after years of negotiations. Following the fall of Communism in 1989, joining the EU had been Poland's foremost geopolitical and economic goal, shared by all governments regardless of their political ideologies.
The background to the spat is the Polish rightwing populist government’s overhaul of the judiciary, which Brussels says is violating the EU’s principles of rule of law. Particular elements of the changes have been challenged by several rulings of the Court of Justice of the EU (CJEU), which Poland ignored. The Commission has even asked the CJEU to impose a daily penalty on Poland for ignoring its ruling on suspending the disciplinary chamber of the Supreme Court.
The tribunal ruled on a motion by Prime Minister Mateusz Morawiecki submitted in late March. The move by the PM was widely seen as potentially preparing a ‘Polexit’ – Poland’s leaving the EU.
The government insists it has no intention of leaving the bloc but is only concerned by the trend of the EU "usurping" more and more competencies that should belong exclusively to the member states.
The tribunal’s ruling boils down to saying the TEU is “incompatible with the Polish Constitution with regards to Polish courts giving primacy to EU law and being able to disregard Polish Constitution and laws,” legal expert Jakub Jaraczewski of Reporting Democracy tweeted in reaction.
“Poland just took a legal step towards the abyss of ‘legal Polexit’,” Jaraczewski added.
From Brussels’ point of view, however, the CJEU will remain the supreme judiciary body of the EU, its decision binding on the bloc’s member states. That will predictably only create more tension between Poland and the EU now.
"Today's oral presentation of the ruling by the Polish Constitutional Tribunal raises serious concerns in relation to the primacy of EU law and the authority of the CJEU," the European Commission said in a statement.
"EU law has primacy over national law, including constitutional provisions. All rulings by the European Court of Justice are binding on all member states' authorities, including national courts," the Commission added.
“The Commission will not hesitate to make use of its powers under the treaties to safeguard the uniform application and integrity of Union law,” it said.
Poland appears unphased by Brussels' concerns. The country's Justice Minister Zbigniew Ziobro, one of the architects of the government's strategy of defying the EU, called the tribunal's ruling "historic".
The tribunal’s ruling is also going to complicate Poland’s standing in terms of receiving tens of billions from the EU’s pandemic recovery fund, which Brussels had decided recently will be conditional on member states’ meeting the rule of law criteria. Poland's fund money is already being held up because of what the EU sees as its violation of the key principles of rule of law.
The government taking aim at the legal cornerstones of Poland's EU membership could elicit protests. Donald Tusk, former President of the European Council and one time Polish PM, tweeted: "I call on all those who want to defend European Poland to the Castle Square in Warsaw, on Sunday, 6pm. Only together can we stop them."
An overwhelming majority of Poles support Poland's EU membership, polls have consistently shown throughout the years.