Poland threw down the gauntlet to the European Union on Thursday when its Constitutional Tribunal issued a judgment that the Polish Constitution in some cases supersedes rulings by the bloc’s highest court.
The Polish judgment, which is a direct challenge to the primacy of European law, one of the cornerstones of the European Union, will only take effect once it is published by the government in an official journal, which could take some time.
But the European Commission, the bloc’s executive, responded quickly, asserting that the Court of Justice of the European Union has primacy over national courts or constitutional tribunals in member countries. The commission said it would take steps to enforce the judgments of the European high court.
For the European Union, getting members to adhere to the bloc’s laws is critical for the survival of the union, which is based on shared sovereignty, and a commitment to European values and the rule of law, as set out in its governing treaties.
“If you want to have a union, you need to have the same E.U. law applied in the same way in all member states,” Didier Reynders, the European commissioner for justice, said in an interview.
What are the issues involved?
Poland’s right-wing government has long been at odds with the European Union over issues like media freedom and L.G.B.T.Q. rights, as well as its efforts to oversee its judiciary.
It escalated that conflict in July when it refused to implement two decisions of the European Court of Justice that effectively ordered the dismantling of a disciplinary “chamber” that critics say has been used by Poland’s government to intimidate judges.
The European Court ruled that the chamber violated the rights of E.U. citizens, guaranteed by treaties, to live under a judiciary system that is free from political interference.
The Polish government argues that national judiciary systems fall outside the scope of E.U. authority. So the European court’s rulings in the case were unlawful, the government said.
On Thursday, after numerous postponements, Poland’s Constitutional Tribunal backed the government’s position by a majority vote, setting up the intensified clash with the European Union.
Further complicating matters, the European Court of Human Rights, a separate institution of the Council of Europe in Strasbourg, has already ruled that at least one of the members of the Polish tribunal was unlawfully appointed.
What justification has Poland used in the legal case?
To bolster its arguments about its national courts, Polish officials have cited questions raised about European law by the German Constitutional Court in Karlsruhe.
The German court ruled in 2020 that the European Court of Justice had acted beyond its competence in a case relating to the purchase of bonds by the European Central Bank. The European Commission took legal action against the German court in June.
Despite the Polish claims, the German court in fact was not challenging the supremacy of the law or the court, but instead questioning the way the European Court had applied E.U. law. In the Polish case, Warsaw is arguing that its own rulings are supreme.
What are the European Union’s tools to respond?
Ursula von der Leyen, president of the European Commission, on Friday stated that “all rulings by the European Court of Justice are binding on all member states’ authorities, including national courts,” adding that “E.U. law has primacy over national law, including constitutional provisions.”
She added: “We will use all the powers that we have under the treaties to ensure this.”
Those powers are both legal and financial, although they do not include any ability to expel a member state.
If the Polish ruling is formalized, Brussels will play hardball with Poland.
After years of talking but little action, the European Union has recently started putting financial pressure on Poland, as well as Hungary, with which it has also been at odds over the rule of the law.
Last month, the European Commission asked for fines of up to $1.2 million a day against Poland for ignoring previous orders by the European Court to suspend the disciplinary chamber. It has also acknowledged it was withholding $66 billion in payments to Poland from an $857 billion coronavirus recovery fund because of its challenges to the supremacy of E.U. law.
The commission also said that it might cut more funding to Polish regions that have declared themselves “L.G.B.T-free zones.” Some regions have already reversed their positions after being cut off from E.U. aid.
Payments of $8.4 billion from the virus fund to Hungary have also been frozen after the European Commission said that Budapest had not done enough to address corruption, a delay Hungary has also condemned as political and biased.
Brussels can also bring more infringement cases against Poland before the court and try to use Article 7 of the Lisbon Treaty, which could lead to the loss of voting rights by a member state. But Article 7 requires a level of unanimity that is nearly impossible to achieve. Article 7 procedures were started against Poland in 2017 and Hungary in 2018, but have stalled, in part because the two countries protect one another.
The European Union has also begun tying disbursement of European budgetary funds to respect for the rule of law. That effort is being tested in the courts by Poland and Hungary.
While Hungary is often lumped in with Poland for challenging European laws and values, the Hungarian government has complied with final rulings of the European Court of Justice and has not challenged its authority, even if critics say it has made only superficial adjustments to laws in order to comply.
What is likely to happen next?
If Poland reaffirms the ruling of the Constitutional Tribunal, the European Commission and its lawyers will also study it.
Experts say that more rule of law cases involving Poland — and Hungary — will be brought before the European Court, and the likely outcome is that more fines will be imposed and more budgetary pressure will be applied to those violating E.U. law.
In various ways, the European Union will try to defend itself against what it sees as an existential threat and try to isolate the violators.
And if nothing else works, Brussels will hope that such actions will affect domestic politics in ways that lead to a democratic change of government.
In Poland, the ruling Law and Justice party depends on support from a party further to the right led by the country’s justice minister, which encourages repeated confrontations with the European Union.
But a large majority of Poles favor remaining in the bloc, and the endless conflict with Brussels and fears that membership in the bloc might be threatened could turn more voters against the government in both Poland and Hungary.