Poland’s top court has found that parts of European law are inconsistent with the Polish constitution, which takes precedence over them.
The landmark judgement – which could be used by the government as a justification for not complying with European court rulings – is seen by some experts as a step towards the effective departure of Poland from the EU legal order.
Poland’s ruling national-conservative Law and Justice (PiS) party, however, insists it has no desire for “Polexit”. It says that it simply wants to prevent EU institutions from “interfering” in member states’ domestic affairs by overstepping the powers given to them in the European treaties.
Today’s ruling was issued by the Constitutional Tribunal (TK) in response to a request by the PiS prime minister, Mateusz Morawiecki, who in March asked the court to confirm the supremacy of Polish over European law.
The TK is widely seen as being under the influence of the ruling party. Its chief justice, Julia Przyłębska, is a close associate of PiS chairman Jarosław Kaczyński. She was engineered into her position in 2016 in an apparent breach of procedures.
Earlier this year, the European Court of Human Rights ruled that the TK is not a “tribunal established by law” because it contains a judge illegitimately appointed as part of the government’s judicial policies.
In the verdict announced by Przyłębska late this afternoon, the TK found that European regulations are incompatible with the Polish constitution in so far as EU bodies operate outside the limits of powers grants to them by Poland, reports Onet.
EU rules have resulted in a situation in which “Poland cannot function as a sovereign and democratic state”, “the Polish constitution ceases to be the supreme law”, and “EU bodies act outside the powers conferred on them by the treaties”, said the chief justice, quoted by Gazeta Wyborcza.
“No organ of the Republic of Poland can allow such a state” to exist, said another judge, Bartłomiej Sochański. It is “inconsistent with the constitution”. Two judges, however, dissented from the majority, with one arguing that Morawiecki’s real aim was to “paralyse” Polish courts and avoid implementing CJEU judgements.
Dzisiejszy wyrok TK jest wezwaniem dla organów UE by przestały naruszać traktaty próbując poprzez uzurpację i szantaż pozyskać kompetencje, których nie uzyskały w traktatach.
UE nie ma prawa ingerować w polskie sądownictwo.
— Sebastian Kaleta (@sjkaleta) October 7, 2021
The ruling was immediately welcomed by government figures. “The primacy of constitutional law over other sources of law…has today (once again) been clearly confirmed by the Constitutional Tribunal,” tweeted government spokesman Piotr Müller.
“Today’s TK ruling is an appeal to all EU organs to stop violating the treaties by trying to obtain by usurpation and blackmail competences that they did not obtain in the treaties,” added deputy justice minister Sebastian Kaleta.
Opposition figures, however, claimed that the ruling was part of a plan by PiS to bring about Polexit. “Jarosław Kaczyński’s dream of a Poland outside the EU is coming true,” tweeted Małgorzata Kidawa-Błońska, a deputy speaker of parliament from Civic Platform (PO), the largest opposition party.
Kaczyński z PiSem wyprowadza Polskę z Unii Europejskiej. #TrybunałJPrzyłębskiej #Farsa #Polexit pic.twitter.com/SSQ0Gdtach
— Krzysztof Brejza (@KrzysztofBrejza) October 7, 2021
Commenting immediately after the ruling was issued, Jakub Jaraczewski, a legal expert from Democracy Reporting International, an NGO, said that “Poland just took a step towards the abyss of ‘legal Polexit'”.
He noted, however, that the ruling only goes into force once the government publishes it. It could therefore be used as a “bargaining chip” in discussions with the European Commission, which has hinted that Poland will not receive EU Covid recovery funds until it can guarantee that European law will be enforced.
The government has a legal obligation to publish TK rulings. However, PiS prime ministers have in the past on occasion either failed to do so or done so long after the required deadline.
Poland just took a legal step towards the abyss of "legal Polexit". The judgment was taken with majority of votes – judges Pszczółkowski and Wyrembak have issued separate opinions. (53/wtm)
— Jakub Jaraczewski (@J_Jaraczewski) October 7, 2021
The ruling gives Poland three choices, argues Robert Kropiwnicki, a legal scholar and PO MP: it can amend its own constitution, try to change the European treaties, or leave the EU.
Last month, the head of PiS’s parliamentary caucus called for “drastic solutions” to Poland’s disputes with Brussels. He pointed to how the UK had chosen to leave the “Brussels dictatorship” completely. A senior PiS MP added that Poland will “fight the Brussels occupier”, just as it did the German and Soviet ones in the past.
Other figures, including Kaczyński and Morawiecki, subsequently downplayed such talk. Speaking yesterday to German newspaper Wirtschaftswoche, Morawiecki said that “Polexit is simply fake news” created by the opposition. Polling has repeatedly shown that a large majority of Poles favour remaining in the EU.
Main image credit: Slawomir Kaminski / Agencja Gazeta
Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.
