Rule of law crisis deepens in Poland: Fresh Attack on the EU

22 November, 2021

In the aftermath of the German elections, the EU had been keenly observing the coalition talks as to who will lead Germany next. The dust had not even settled before the ruling of the constitutional court of Poland sent shockwaves through Brussels. The integrity of rule of law in the EU took a major hit as the Polish court recognized the superiority of Polish law over European law. This ruling is the latest addition to the ongoing saga of a tenuous relationship between Warsaw and Brussels, as the EU has struggled to deal with Poland’s deteriorating rule of law situation for the past five years (timeline below).

Bombshell Polish court ruling and incompatibility with EU law

As noted, the recent ruling comes after several attempts by the Polish government to undermine the EU legal order in the past. To name one example, Poland adopted the muzzle law in 2019 which was a major step towards the systematic violation of the EU’s and ECHR’s requirements of judicial independence. It targeted the Polish judicial system under the garb of judicial reforms by subjecting judges to arbitrary disciplinary investigations conducted by government authorities. In July 2021, the ECJ found the disciplinary regime for judges in Poland to be in clear violation of EU law wherein Poland has failed to fulfill its obligations of providing a fair and transparent judicial system. Respect for rule of law is one of the foundational values of the EU and the failure to implement these ECJ rulings was a clear signaling of anti-EU measures.

Poland has been battling it out with the EU on the issue of restructuring of its own national judicial system, and the Polish ruling on 7 October challenged multiple provisions of the Treaty on European Union (TEU) questioning the overarching powers of the ECJ and the compatibility of its rulings with the Polish constitution. This implies that de facto Poland did not concede the power to decide over national judicial reforms to the EU and claimed that the EU has been acting outside its competence signaling a clear rejection of the foundational values of the EU enshrined in the treaties. The decision of the constitutional tribunal that undermined the primacy of EU law triggered the debate of a possible Polexit.

Beyond dialogue and compromise: A long battle ahead

In the immediate aftermath of the latest court ruling, Poland found itself on a collision course with Brussels. A war of words amongst the political class of Warsaw and Brussels began. The mood within the EU is clear that this Polish ruling is a direct threat to the Union. Poland is fighting the supremacy of the European courts and does not seem to give away its fight any time soon. Additionally, a deep divide between the ruling government of Poland and its citizenry was also on display. While the current political regime in Poland is critical of the EU, Polish citizens still cherish its membership to the EU. Citizens’ trust in the EU has weakened over the years but they still value the EU membership, and the recent polls suggest that almost 90 percent of the Polish population want to remain within the EU. Thousands of protestors took to the streets of Warsaw chanting “Zostajemy W Unii”, with which they declared their clear intention of staying in the EU. In an immediate response, the Polish PM equated talks of Polexit as fake news and defended his position.

Some analysts believe that there is an increasing possibility that Polexit will be advocated by the ruling party in Poland but the overwhelming majority believe that despite the Brussels-Warsaw feud there will be no Polexit. The EU currently lacks the mechanism to expel a Member State, but it has the option to impose financial penalties whereby it could withhold billions of euros in the EU recovery and resilience funds. Due to its ongoing feud with Poland the European Commission has not yet cleared Poland’s national recovery plan, worth 57 billion euros. An institutional response on the issue is expected from the ECJ which will opine on December 2 regarding possible measures cutting off funds to countries that are in violation of rule of law.

The plenary debate on 19 October saw a heated exchange between the Commission President Ursula von der Leyen and the Polish PM Mateusz Morawiecki. In her opening statement, von der Leyen called out Poland for outrightly rejecting the European legal order and termed it deeply concerning. In her speech, she emphasized the available options (infringement procedure, conditionality mechanism, financial tools and Article 7) with the EC to deal with the Polish situation. In response, the Polish PM said that Poland cannot be intimidated by the blackmail of financial penalties. As expected, a tense discussion on the state of rule of law transpired when leaders met for a European Council (EUCO) summit on 21st October. Angela Merkel cautioned that it is relevant for the EU to consider having a dialogue on relations with Poland on the primary issue of national sovereignty vis-à-vis EU rule of law. The Netherlands objected to any money from the recovery fund going to Poland until the democratic backsliding and rule of law situation improves in Poland. Amongst the Visegrad countries, Poland has found support from Hungary wherein Hungarian Prime Minister Viktor Orban called it a witch hunt against Poland. Meanwhile, a penalty of 1 million Euro was imposed on Poland by the ECJ over its judicial reforms and for failing to secure rule of law situation in the county.

European Parliament v. European Commission: What the future holds?

In the ongoing saga, the European Parliament on 29th October filed a lawsuit against the European Commission for failure to apply the rule of law mechanism. The current rule of law situation in Poland is deemed an open wound and a long-term threat that needs to be solved for the EU to thrive. The functionality of the EU relies on independent national judicial systems amongst other foundational values. In a blatant disregard to the ECJ order, Poland has already vowed not to pay any fines. The current rule of law crisis in Poland is expected to unravel more in the time to come, and the EU cannot afford its own legitimacy and credibility eventually being undermined by its inability to tackle the current situation. The European Parliament has already sued the Commission for its ineffective dealing of the rule of law crisis in Poland and inaction on imposing the conditionality mechanism. The European Parliament is thereby acting as an enabling institution in pushing the Commission to act. It must be kept in mind that this sort of gradual and structural distortion of the European legal order does not bode well for the future of Europe. There is no doubt that the true power and authority lies with the European Commission and the ECJ to implement its effective toolbox in order to maintain the integrity of the European legal order. Hence, it is of utmost importance for the EU to move beyond the stage of dialogue and act as an institutional enabler with whatever it can to make sure this is not the beginning of the end for the European legal order.


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