By Kaitlyn Byrne
Poland became a member of the European Union on May 1st, 2004, under the Accession Treaty signed in Athens in April 2003. This involved the commitment to “a stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities” (European Council, 1993). However, recently, the Polish Constitutional Tribunal ruled that the Polish Constitution has the capacity to supersede the rulings and judgements by the European Union’s highest court. This is a direct contradiction of what was agreed upon 17 years ago. This act by Poland is a critical blow to the harmony of the Union, who insists that consensus among states is key for the bloc’s survival.
The EU has been described as a “community of law,” a term coined by German academic and former President of the European Commission Walter Hallstein. It highlights how the Community is based on the ‘rule of law’ principle and “underscores the role of law in the European project.” (Manko, 2017). This rule of law principle is one of the core values upon which the stability of the Union rests. It explains how member governments are to be “bound by law, that they should not take arbitrary decisions, and that citizens should be able to challenge their actions in independent courts.” (European Parliament, 2021). Poland’s recent ruling is the antithesis to the functioning of the Community and denounces what was agreed upon in 2004.
Leading the charge is current Vice-Prime Minister and Leader Jarosław Kaczyński, leader and co-founder, along with his brother, of the right-wing national-conservative Law and Justice (PiS) party. They received 55% of the voting share in the 2015 election and have remained in a majority government ever since; a feat that remained unaccomplished since the fall of communism in Poland. During his brief period in government from 2005 to 2007, Kaczyński blamed the courts of the EU for “undermining his radical political program” and “his party’s democratic right to rule,” a concept which he named ‘legal impossibilism’ (Wanat, 2021). As part of its 2015 election campaign, PiS claimed that the courts were in dire need of change, stating “Without a deep reform of the courts, fixing the country is very difficult, as this is the last barricade, the lase level of decision-making in many different cases” (Polsat, 2018). This was followed by the illegal appointment of three judges with close ties to the party, a move which caught the attention of Brussels. PiS further altered the state of the Polish court system by establishing a new disciplinary body within the Supreme Court of Poland, which the EU later ruled “is not compatible with EU law” (Court of Justice of the European Union, 2021).
In order to validate their claims, PiS have used a German court ruling from 2020 to show the incompetence of the Union. It was claimed that this case showed that the EU is willing to operate beyond its boundaries, in this case through the unlawful purchasing of bonds by the European Central Bank. In actuality, the Constitutional Court in Germany ruled that “the ECB’s program would be illegal under German law unless the decision would prove the purchases were justified” (Brenton, 2021). It must be acknowledged that the German Constitutional Court was simply challenging the way that the EU had applied European Union law in this case, not the actual law itself. This is how the German and Polish cases differ; in Poland’s case, it is being argued that the laws of the European Union themselves are inferior to Polish law.
In response to this, the EU has assured that the full extent of its legal and financial powers will be used. In the legal sense, the Court of Justice of the European Union has been closely monitoring Poland, including threats of fines and questioning the legitimacy of arrest warrants (Wanat, 2021). Additionally, the EU has yet to approve Poland’s COVID-19 recovery program, nicknamed “The Polish Deal”, of €36 billion, encompassing various grants and loans deemed essential in order for Poland to recover from the pandemic. This success of this scheme is crucial for PiS as they hunt for victory in the next election in Poland scheduled for 2023.
Despite PiS claiming that Poland has no intention of activating Article 50, the EU insists that if its authority is continually ignored and the judiciary of the Union continues to be undermined, then there is a de facto risk of Poland being forcibly removed from the Union. Within its legal arsenal, the EU has the power of Article 7, allowing for the suspension of a member states’ voting rights if said member state “breaches the principles on which the EU is founded” (Hofelich, 2021). This action is unlikely to ever succeed as Poland is currently being protected by Hungary due to mutual notions on key human rights issues. The more likely scenario is that of Poland remaining in the Union and covertly remodelling European institutions from the inside, coined “a dirty remain” by The Economist (Charlemagne, 2021).
The current actions of Poland are further pushing the boundaries of what is classes as ‘acceptable behaviour’ from member states within the European Union. Similarly, to how Brexit proved that a member state could, in fact, withdraw from the Union in a manageable fashion, the situation in Poland is showing how lenient the EU can be. If Warsaw’s defiance against the core values of the bloc is not swiftly dealt with, it shows other states with mutual interests how they can bargain and protest their way to a deal.
- European Council (1993) Presidency Conclusions, Copenhagen European Council, June 21-22. Copenhagen: European Council, 7Aiii.
- Manko, R., 2017. The EU as a community of law: Overview of the role of law in the Union – Think Tank. [online] Europarl.europa.eu. Available at: <https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_BRI(2017)599364> [Accessed 23 October 2021].
- European Parliament, 2021. Rule of law: new mechanism aims to protect EU budget and values | News | European Parliament. [online] Europarl.europa.eu. Available at: <https://www.europarl.europa.eu/news/en/headlines/eu-affairs/20201001STO88311/rule-of-law-new-mechanism-aims-to-protect-eu-budget-and-values> [Accessed 23 October 2021]]
- Wanat, Z., 2021. Poland’s ‘Russian roulette’ with the EU. [online] POLITICO. Available at: <https://www.politico.eu/article/poland-rule-of-law-judicial-system-eu-pis-jaroslaw-kaczynski/> [Accessed 23 October 2021].
- Polsat, 2018. Kaczyński: reforma sądownictwa idzie z kłopotami, ale doprowadzimy ją do końca – Polsat News. [online] polsatnews.pl. Available at: <https://www.polsatnews.pl/wiadomosc/2018-10-16/kaczynski-reforme-sadownictwa-doprowadzimy-do-konca/> [Accessed 23 October 2021].
- Court of Justice of the European Union, 2021. The disciplinary regime for judges in Poland is not compatible with EU law. [ebook] Curia, p.1. Available at: <https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-07/cp210130en.pdf> [Accessed 23 October 2021].
- Brenton, H., 2021. EU prepares legal action against Germany over ECB court ruling. [online] POLITICO. Available at: <https://www.politico.eu/article/eu-prepares-legal-action-against-germany-over-ecb-ruling/#:~:text=Germany’s%20Constitutional%20Court%20ruled%20in,Justice%20of%20the%20European%20Union.> [Accessed 27 October 2021].
- Hofelich, T., 2021. De facto differentiation in action: Why Poland will stay in the EU, with or without the blessing of Brussels. [online] EUROPP. Available at: <https://blogs.lse.ac.uk/europpblog/2021/10/22/de-facto-differentiation-in-action-why-poland-will-stay-in-the-eu-with-or-without-the-blessing-of-brussels/> [Accessed 27 October 2021].
- Charlemagne, 2021. Poland is a problem for the EU precisely because it will not leave. [online] The Economist. Available at: <https://www.economist.com/europe/2021/10/14/poland-is-a-problem-for-the-eu-precisely-because-it-will-not-leave> [Accessed 27 October 2021].