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Poland Rejects EU Law Primacy in New Challenge to Bloc’s Order

Bloomberg logo Bloomberg 10/7/2021 Piotr Skolimowski, Maciej Martewicz and Stephanie Bodoni
Protests Are Held Against Recently Signed Restrictive Judiciary Laws © Photographer: Omar Marques/Getty Images Europe Protests Are Held Against Recently Signed Restrictive Judiciary Laws

(Bloomberg) -- Poland’s top court ruled that the constitution overrides some European Union laws, intensifying a conflict over democratic backsliding that could sink billions of euros in pandemic aid and challenge the country’s membership in the bloc.

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The judgment may be used by Poland’s government as justification for bypassing common rules that underpin the functioning of the 27-nation bloc. It follows years of increasingly bitter disputes between Warsaw and Brussels over the independence of courts, media freedom and LGBTQ rights.

The Warsaw-based tribunal ruled that Poland’s constitution can’t allow the EU to influence spheres where the country hasn’t deferred powers to the bloc, such as judicial matters. The zloty extended losses following the verdict.

If the EU can change any Polish law it wants, “it would mean that democracy is a sham, pure fiction,” said Jaroslaw Kaczynski, the country’s most-powerful politician and the architect of its current brand of populism. “Had the tribunal ruled otherwise, it would mean Poland isn’t a sovereign state.”

Read More: What’s EU Law and What Happens When It’s Broken: QuickTake

The verdict that challenges the supremacy of European law also makes it even less likely that Poland will receive 36 billion euros ($42 billion) from the bloc’s pandemic aid without any strings attached. Top EU officials have signaled that questioning the bloc’s primacy, which glues members together in a single legal system, has already delayed the approval process.

Prime Minister Mateusz Morawiecki, who submitted the case to the tribunal, said this week that the EU’s largest eastern economy would ride out any loss of the pandemic aid because its finances are in good shape.

‘Attack on the EU’

Video: Poland to face daily fines from EU over justice system non-compliance (Daily Mail)


The response from Poland’s EU partners was swift. Justice Commissioner Didier Reynders said the bloc’s position on primacy and respect for verdicts handed down by the EU’s courts was “very clear.” 

“We’ll continue to use all the tools at our disposal” to protect common rules, he said after a meeting with EU justice ministers in Luxembourg. “We don’t want any deviation from these principles.”

Jeroen Lenaers, justice and home-affairs spokesman for the European People’s Party, the largest group in the European Parliament, said the ruling put a question mark over Poland’s membership in the bloc and was an “attack on the EU as a whole.”

The challenge from Poland adds fuel to a debate over the primacy issue following a landmark decision by Germany’s top court last year that accused judges at the EU’s highest tribunal of having overstepped their powers when they backed the European Central Bank’s quantitative-easing policy. The EU Commission in June started infringement proceedings against Germany. 

While the German case pertains solely to buying debt, the concern is that Poland can use Thursday’s judgment to ignore EU rules it doesn’t want to comply with. Such an outcome puts Poland outside the bloc’s legal system, according to Laurent Pech, professor of European law at Middlesex University in London.  

Polexit Question

“Poland’s unlawfully composed Constitutional Tribunal just crossed the Polexit Rubicon,” Pech said, using the Polish term for the country’s potential withdrawal from the EU. “They essentially pulled out from the EU’s rule-of-law standards, did something that’s incompatible with EU rules, which means Poland’s membership will be seriously questioned. This will only get worse.”

In July, the tribunal ruled that Poland doesn’t need to abide by EU court interim orders regarding its judiciary reforms. That came as the EU Court of Justice ruled that Poland’s regime for disciplining judges could be used to exert political control over decisions and must be immediately suspended -- a verdict that has been ignored by the government. 

Thursday’s judgment “leads Poland into a minefield,” said Jaroslaw Gowin, an opposition lawmaker who was kicked out of his post as deputy prime minister in August. The government has “painted itself into a corner” by refusing to abide by EU rules and now the country will face the consequences.”

(Updates with more context and comments, starting in paragraph three.)

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