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Will Poland's 'nuclear strike' on EU's legal order lead to 'Polexit'?

In a decision that sent shockwaves through Europe, Poland’s constitutional court on Thursday ruled the country’s laws had supremacy of those of the European Union.

The long-awaited ruling says some parts of EU treaties and court rulings go against Poland’s highest law.

Jakub Jaraczewski, research coordinator at Democracy Reporting, called the move a “massive escalation of the crisis of the rule of law in Poland”.

“This is unprecedented. We have an EU member state basically stating that the primacy of EU law, one of the core ideas of the European Union common legal order, is partially not effective in Poland. This has not happened before,” Jaraczewski told Euronews.

Laurent Pech, professor of European law at Middlesex University, compared the ruling to a “nuclear strike on the EU legal order”.

“As soon as the judgment is going to be published, Polish judges are going to have to choose between violating EU laws or disobeying the constitution. So if they do not violate EU laws, because they have a duty to apply EU rule of law standards under the treaties, then they are going to face disciplinary proceedings and possibly also criminal proceedings,” Pech said.

The Polish verdict drew strong condemnation from the EU’s executive and the main parties in the European Parliament. The European Commission said the ruling “raised serious concerns” and suggested that Warsaw could expect a strong response from Brussels.

“The Commission will not hesitate to make use of its powers under the Treaties to safeguard the uniform application and integrity of Union law,” the statement said.

The EU has never seen a member state’s judicial system defy so openly the foundations of the bloc. So what kind of ramifications will the Polish ruling have in practice?

Euronews explores how the unprecedented verdict will impact Warsaw’s relations with Brussels in the future.

Where did the ruling come from?

Since the right-wing Law and Justice party came to power in Poland in 2015, it has been accused of taking steps to control the judiciary, including placing loyalists on a judicial appointments body, forcing the retirement of some Supreme Court justices and establishing a legal chamber with the authority to discipline judges and prosecutors.

In March, the European Court of Justice ruled that Poland’s new regulations for appointing judges to the Supreme Court could violate EU law, which takes precedence.

The European Court of Justice ruling obliged the government to ditch the new regulations and observe the independence of justice.

It prompted Polish Prime Minister Mateusz Morawiecki to ask the Constitutional Tribunal to initiate a review of law supremacy, which started in July.

The tribunal majority said on Thursday that Poland’s EU membership since 2004 did not give the European court supreme legal authority and did not mean that Poland had shifted its law sovereignty to the EU. It said no state authority in Poland would consent to an outside limitation of its powers.

Pech emphasised that the decision came from an “unlawful” court that has been widely criticised for its lack of independence.

“The Constitutional Court in Poland has widely been described as a ‘captured’ court or a ‘puppet court’. So this is not really a serious court. It did essentially what the ruling party wanted the court to do, which is to prevent the application of EU law standards in Poland.”

Gerald Knaus, chairman of the European stability initiative, a think tank, pointed to a July ruling of the European Court of Justice referring to a “structural breakdown” of the Polish judiciary, which “no longer makes it possible either to preserve the appearance of independence and impartiality of justice and the trust which the courts must inspire in a democratic society or to dispel any reasonable doubt in the minds of individuals.”

For Knaus, Thursday’s Polish verdict will “surprisingly not make much of difference” and the whole question is whether the European Court of Justice’s July decision will be implemented.

How can Brussels respond?

The experts interviewed by Euronews said the EU had a wide range of legal, financial and political tools available to respond to the Polish verdict.

The European Commission has yet to unlock the payment of billions of euros to the country from the EU COVID recovery fund. It may very well refuse to sign up on the €57bn slated for Poland.

“This is a huge chunk of money that they were expecting, and I cannot see this money being paid out now with this ruling,” said Green MEP Daniel Freund.

The European Commission could make EU funding conditional upon respect for key EU values, such as the rule of law and judicial independence. But it has yet to get approval from the European Council, which comprises leaders of EU countries.

“The rule for all EU funds to be paid out is that when there is no working justice system, money cannot flow. So the Commission has a relatively quick lever that they can pull and that they need to pull so that money immediately stops flowing until justice is properly restored in Poland,” Freund went on.

On the legal side, Knaus told Euronews that the European Commission had “already done the most important thing by going to the European Court of Justice with an infringement procedure”. Now, he added, the Commission needs to go back to the European Court of Justice and ask it to enforce its ruling with a fine.

Jaraczewski told Euronews that the ECJ had multiple cases regarding Poland pending before it, and that it could take them as an opportunity to suspend, for instance, common judicial cooperation mechanisms with Warsaw such as the European arrest warrant.

“Also, other EU members states could take action, not just politically, but also bring cases against Poland to the ECJ over damage to the rule of law and damage to the common EU legal order,” Jaraczewski said. He cited a recent precedent when the Czech Republic took Poland before the European court over environmental damage.

“I think we’ve seen an increase in determination from the EU over the last six to nine months, they’ve started taking stronger action and started bringing more infringement proceedings, and they’ve started to wake up,” said Garvan Walshe, a former foreign policy advisor to the British Conservative Party and Chair of Unhack Democracy, a Brussels-based non-profit.

“Brussels has to stand firm, it can’t talk about a reasonable compromise here. If the Polish Constitutional Court had its way then many other constitutional courts would follow, and it would undermine the principles of EU law that have been established since the 60s and 70s, ” Walshe told Euronews.

Knaus added that “effective communication,” both from the EU executive and influential member states, would be essential to convey to the Polish public that its moves to uphold the EU legal order are not anti-Poland but that it has “no choice” than to react on such an existential issue.

Is it the first step of Polexit?

Several voices in Brussels said the Polish verdict brought the country closer to a so-called ‘Polexit.’

“A Polexit from the EU legal order seems to become unavoidable. It effectively makes cooperation impossible,” said Renew MEP Sophie in ‘t Veld.

But Government spokesman Piotr Mueller said the verdict had no effect on areas of EU treaties such as competition, trade, consumer protection, and the exchange of services and goods. He claimed that top courts in Germany, France, Spain and other EU nations also have upheld the primacy of national laws.

For Pech, Polexit “has already started”.

“It started back in July when they denied the validity of all ECJ orders,” the law professor told Euronews. “This is just not acceptable nor compatible with being a member of the European Union.”

“I would not refer to this Polexit as Poland quitting the European Union,” Jaraczewski insisted. Such an exit would not be a popular decision, since an estimated 80% of people in Poland support the country’s EU membership.

“What I think might happen is a kind of ‘legal Polexit’, a removal of Poland from parts of the European Union’s legal sphere, making it a country that’s not fully participating in the European Union as it should as a full member state,” the researcher said. “And that may result in a very damaging situation both for the European Union, for Poland and the Polish people.”

Knaus said this scenario was “worse than Brexit” in the sense that it could lead to the collapse of the EU legal order.

What will be Warsaw’s next moves?

The Polish government is yet to publish the ruling in the Journal of Laws, a necessary step for the decision to enter into force.

While it’s usually done within days, it took the government three months to publish the court’s controversial judgement in October last year banning legal abortion in the country.

“It is possible that the Polish government will now refrain from publishing this judgment and send a message to the Commission, please back off, or we will publish this and we will set the European Union’s legal order on fire,” Jaraczewski said.

“I think that the Polish government and the Polish prime minister have overplayed their hand,” the researcher told Euronews. “Some people in the Polish government may think that those are hardball tactics that are going to make the European Commission step down and unlock the recovery fund.”

“But I think that they have massively underestimated the possible legal and political fallout of this decision.”

One crucial development to watch from Warsaw is how ¨Polish judges will react to the ruling, Jaraczewski told Euronews.

“One very important thing to track now is what Polish judges will do, not just in Warsaw but also in small towns and cities, whether they will have the integrity and courage to fight the Polish Constitutional Tribunal ruling and respect the premises of EU law, despite the danger of having disciplinary proceedings against them, despite the danger of them being intimidated and harassed by the government. And it very much falls on the individual bravery of those people.”

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