Brussels launches legal action against Poland for “challenging primacy of EU law”

The European Commission has announced legal proceedings against Poland at the Court of Justice of the European Union (CJEU) for what it claims are “violations of EU law by the Polish Constitutional Tribunal”.

The charges stem from two rulings issued by the Constitutional Tribunal (TK) – a body widely seen as being under the influence of Poland’s ruling Law and Justice (PiS) party – that found parts of EU law to be inconsistent with the Polish constitution.

Those rulings “directly challenged the primacy of EU law and the provisions of the EU treaties”, says the European Commission.

In the first, passed in July 2021, the TK ruled that interim orders issued against Poland by the CJEU are unconstitutional. That effectively gave the green light for the government to ignore such orders.

The second, issued in October 2021, again found parts of European law to be inconsistent with the Polish constitution, which the TK ruled takes precedence over them. Many experts warned at the time that it was a step towards the effective departure of Poland from the EU legal order.

In December 2021, the European Commission launched infringement proceedings against Poland over those two TK judgements. It said that the Polish constitutional court had “disregarded its obligations under EU law”.

The commission also expressed at the time “serious doubts on the independence and impartiality” of the TK, which it “considers no longer meets the requirements of a tribunal previously established by law”.

Rulings by both Polish and European courts have found that the TK – whose chief justice, Julia Przyłębska, is a close associate of PiS chairman Jarosław Kaczyński and which contains illegitimately appointed judges – in its current form is not a lawfully established body.

In a statement today, the commission noted that, in its dialogue with Poland since December 2021, “the Polish reply does not address the commission’s concerns”, which is why it has now decided to refer the case to the CJEU.

The commission argues that the TK’s two 2021 rulings constitute a breach of Article 19(1) of the Treaty on European Union (TEU), which guarantees the right to effective judicial protection.

“Primacy of EU law ensures equal application of EU law across the union,” says the commission. “[Our] objective is to ensure that the rights of Polish citizens are protected and that they can enjoy the benefits of the EU in the same way as all EU citizens.”

The commission also reiterated its belief that “the Constitutional Tribunal no longer meets the requirements of an independent and impartial tribunal previously established by law…due to the irregularities in the appointment procedures of three judges and in the selection of its president”.

Today’s development marks the latest in a long-running series of clashes between Warsaw and Brussels since PiS came to power in late 2015.

The European Commission has repeatedly accused Poland of violating the rule of law, and the CJEU has issued a number of rulings against it. That has resulted in Poland having to pay millions of euros in fines and seeing billions of euros in EU funds frozen until the commission’s concerns are addressed.

The Polish government, however, denies that it has violated the rule of law and accuses Brussels of targetting it for political reasons because it has challenged the EU’s left-liberal mainstream.

Nevertheless, in an effort to meet Brussels’ demands and unlock frozen funds, Poland’s parliament this month passed a law undoing some of the government’s judicial reforms. However, President Andrzej Duda subsequently referred it for assessment by the TK – the very body whose legitimacy is being questioned by the commission.

Main image credit: European Union 2021 – Source: EP (under CC BY 4.0)

Daniel Tilles

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.