Warsaw’s challenge to the supremacy of European law has sparked a crisis in the heart of Brussels. A court ruling from Poland has found elements of EU law are incompatible with Poland’s constitution – in particular, the role of the Court of Justice (ECJ) as the bloc’s ultimate arbiter of law.
While Brussels prepares its punishments for the member state, there are even more wide-ranging consequences coming down the road for the EU – with legal implications that can’t be solved by handing out financial punishments.
The tribunal ruled: “The effort by the Court of Justice of the European Union to interfere in the Polish justice system violates the principle of rule of law, the principle of the primacy of the Polish constitution as well as the principle of retaining sovereignty in the process of European integration.”
The question was submitted by Prime Minister Mateusz Morawiecki on whether the Court of Justice of the EU is going too far in its rulings on Poland’s judicial system and exceeds its competencies under the European Treaties.
Poland may have got the ball rolling in a process that could effectively decouple the country’s legal system from the other EU member states – and what’s worse, others could follow their example.
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EU leaders reacted with anger to the ruling – something that continued throughout the EU summit last week, despite Poland’s Prime Minister’s reassurances that the country was still committed to the bloc.
Other leaders took a more conciliatory tone, with Germany’s Chancellor Angela Merkel saying “rule of law is a core aspect of the European Union”.
“At the same time, we have to find ways of coming back together, because a cascade of cases at the European Court is not a solution.”
Belgian Prime Minister Alexander de Croo said: “If you want to have the advantages of being in a club… then you need to respect the rules. You can’t be a member of a club and say, ‘the rules don’t apply to me’.”
But many pressed for swift punishment – and EU Commission leader Ursula von der Leyen is currently devising an official reaction from the bloc, which will most likely come in the form of severe financial punishment.
Poland’s PM Mateusz Morawiecki clashed with Ms von der Leyen in the European Parliament on Tuesday, saying the Commission was pushing the boundaries of its legal mandate, and warning “we will not act under pressure of blackmail.”
He went even further on Monday, admitting in an interview that if the Commission withholds promised Covid recovery funds from the country, he would “defend our rights with any weapons which are at our disposal.”
Polish officials have said the country has no intention of breaking away from the other member states, but the ruling last month challenges the notion that all EU countries must apply EU laws.
If Poland refuses to bow to the pressure to step back into line, the stand off could have wide reaching consequences for the economy and everyday people in Poland.
A number of legal proceedings could be hampered, including family law, European arrest warrants, commercial legal dealings and general trust in Polish courts.
The European economy relies in large part on EU guarantees that if businesses take a dispute to a court in many of the member states, judges are applying the same European standards.
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If businesses can no longer safely assume Poland will hold itself to these rules, it could have wide ranging legal complications for the single market – and inspire similar moves from other EU states.
Poland has received backing for its actions from Hungary’s nationalist Prime Minister Viktor Orban – with whom the EU has also sparred with already this year.
He said: “The fact is very clear: the primacy of EU law is not in the treaty at all, so the EU has primacy where it has competences.
“What’s going on here is regularly that European institutions circumvent the rights of the national parliament and government.”
And what’s more is this row could have implications for the UK, with Brexit negotiators also currently making waves over the role of the ECJ.
Under the terms of the protocol, the ECJ has jurisdiction to rule on matters of EU law in Northern Ireland.
But the UK says this needs to be removed, saying as long as it continues the protocol will never survive.
In a paper published in July, the Government said it only agreed because of the “very specific circumstances” of the protocol negotiation.
But now Boris Johnson and his cabinet want a new arrangement in which disputes should be “managed collectively and ultimately through international arbitration”.
Brexit negotiator David Frost will continue talked with his Brussels counterpart this week.
And while there’s no sign as yet what the result will be in Poland’s rule of law argument, it’s certainly put a spotlight on the role of the ECJ – something that could be beneficial to Britain.
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