On October 7, the Polish Constitutional Court denounced the European Union’s interference in the Polish legal system, and affirmed the primacy of Polish constitutional law over European law.  However, despite the tense climate between the European Union and Poland, several observers call for not overestimating the Polish desire for a frontal conflict with the European Union. The decision of the Polish Constitutional Court seems to be a declaration of political intent rather than a real jurisprudential turning point. It is directed more towards Polish public opinion rather than European constitutional experts.

The Polish government does not want to leave the European Union, it wants to change it from within. The decision made by the Polish Constitutional Court does not fall within an approach to take Poland out of the EU.  It  takes it out of the letter and spirit of the Union, without setting in motion a process of departure. 

The crisis triggered by the decision is of a twofold nature: first, because of the attacks on the independence of the judiciary in Poland, which are already the subject of disputes with Brussels; and second, because of the decision that denies the primacy of European law over national law. 

The dispute between Warsaw and Brussels over the lack of independence of judges became even more serious on Wednesday, October 27, when the EU justice system ordered Poland to pay a fine of one million euros per day. This decision sanctions Poland’s failure to comply with a ruling of the Court of Justice of the EU (CJEU), which on July 14 ordered the immediate cessation of the activities of the disciplinary chamber of the Polish Supreme Court.

In an initial reaction, Warsaw accused the court of “overstepping and abusing” its powers to impose financial sanctions, through the voice of a state secretary of justice, Sebastian Kaleta.

The head of Poland’s conservative nationalist government, Mateusz Morawiecki, recently pledged to carry through with the abolishment of the chamber that was supposed to happen in August but continues to operate. This body, set up as part of a controversial reform of the Polish judiciary, is responsible for supervising judges, with the power to waive their immunity to expose them to criminal prosecution or to reduce their salaries.

The CJEU ruled in July that the chamber “did not offer all the guarantees of impartiality and independence” and was “not immune from direct or indirect influence by the legislative and executive powers”.

“Compliance with the interim measures ordered on July 14 is necessary in order to avoid serious and irreparable damage to the legal order of the European Union and to the values on which that Union is founded, in particular that of the rule of law,” the Court said on Wednesday.

A financial penalty had been requested from the Court on September 7 by the European Commission on the grounds that “the EU’s judicial systems must be independent and fair”.

Tensions have increased on 7th October, when the Polish Constitutional Court declared certain articles of the European treaties incompatible with the national constitution. This is a thunderclap for Europeans, who see it as an unprecedented attack on the rule of EU law and respect for the Court’s decisions.

The lack of independence of the Polish judiciary and the primacy of European law was one of the dominant issues at the latest European summit in October.

The EU-27 played the card of appeasement, with Germany throwing its weight around, while reserving the possibility of retaliatory measures later on.

While assuring that it wants to remain a member of the European Union, which it joined in 2004, Poland has repeatedly denounced “blackmail” by Brussels.

Poland’s 36 billion euro post-Covid recovery plan is currently frozen by the Commission, which is demanding guarantees on the independence of the Polish judiciary.

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