Polish law exceeds European law, the Constitutional Court of Poland ruled on Thursday. Where European Union treaties and EU court rulings are contrary to the Polish Constitution, its own law takes precedence.
In doing so, the country undermines one of the most important principles of the EU. What does this statement mean for Poland‘s position in the European Union? And what are we going to notice in the Netherlands?
Polish lawyer Maciej Tabarowski is a representative of the Polish Ombudsman, one of the last independent institutions left in the country. He is critical of the Supreme Court ruling.
“The ruling is just one of the elements that threaten democracy in Poland,” he says. “But it is above all a threat to our presence in the European Union.”
He sees three ways to get out of the situation created by the ruling. “The Polish Constitution needs to change, but that makes sense very problematic. Another option is for European legislation to change.” On that side, too, it will be difficult to move, he expects.
“The last option, advised by the Constitution Court, is for Poland to leave the European Union.”
Whether that is going to happen is hard to assess, thinks John Morijn, a member of the College of Human Rights and a special professor of law and politics in international relations. “Formally, a country has to leave the EU itself, as with Brexit,” he says. “But by no longer recognising European law as the highest right, you are more or less stepping out of it.”
Before a ‘Polexit‘ comes up, there are many steps that the European Union will take.
“Both the Commissioner and the President of the European Commission have said right after the ruling that what Poland is doing now cannot do at all,” Morijn says. “European law simply stands above Polish law, they say.”
So there will be legal and political consequences from Europe, he thinks. For example, by dragging Poland to the European Court in Luxembourg. That court assesses whether Member States comply with EU law properly. Poland has already been convicted of violating judicial independence on a number of occasions.
According to Morijn, it is “100% certain” that the European Commission is going to refer Poland to the European Court. However, it is still a question when that will happen and in what order.
“They may attach financial consequences to it first, by giving less or no more money to Poland,” he says. For example, the Commission can do this by suspending Covid funds intended to combat corona, or by reducing the lump sums it receives.
The Polish Ombudsman Tabarowski’s deputy would understand if the European Commission chose to do so, but sees the consequences gloomy. In particular, he fears that the consequences of the sanctions will end up with the Polish citizen. “That is, of course, a development I don‘t want for my country.”
The situation in Poland also has a direct impact on the Netherlands, according to Morijn. “If we start a company and we want to export to Poland, we will have to deal with Polish judges there. You may find yourself in trouble with an activity protected by European law. When the Polish judge is no longer independent, you don’t know where you stand. Normally, you can go to European court who is above it. That‘s no longer possible.”
There is therefore an interest at stake that applies to all European countries, says Morijn. “The direct effect and priority of European law is a cornerstone of European law. If you work with 27 legal systems, you should not have 27 types of entitlement implementations. Otherwise it will be a mess.”
“It seems like a legal problem now, but it’s much broader than that. We are dealing with a Member State that does not apply European law. That is problematic for mutual trust in the EU.”