Polish law takes precedence over European law, the Constitutional Court of Poland ruled on Thursday. Where treaties of the European Union and judgments of the EU courts conflict with the Polish constitution, their own law takes precedence.
In doing so, the country undermines one of the EU’s most important principles. What does this ruling mean for Poland’s position in the European Union? And what will we notice in the Netherlands?
Polish lawyer Maciej Tabarowski is a representative of the Polish Ombudsman, one of the last independent institutions left in the country. He is critical of the Supreme Court ruling.
“The ruling is just one of the elements that threaten democracy in Poland,” he says. “But it is above all a threat to our presence in the European Union.”
He sees three possibilities to get out of the situation created by the ruling. “The Polish constitution has to change, but that is logically very problematic. Another option is for European legislation to change.” It will also be difficult to move on that side, he expects.
“The last option, advised by the Constitutional Court, is for Poland to leave the European Union.”
Whether that will indeed happen is difficult to estimate, thinks John Morijn, member of the Netherlands Institute for Human Rights and endowed professor of law and politics in international relations. “Formally, a country has to leave the EU itself, as with Brexit,” he says. “But by no longer recognizing European law as the highest right, you more or less get out of it.”
Before a ‘Polexit’ is possibly on the agenda, there are all kinds of steps that the European Union will take.
“Both the European Commissioner and the President of the European Commission said immediately after the verdict that what Poland is doing now is not possible at all,” says Morijn. “European law simply remains above Polish law, they say.”
So there will be legal and political consequences from Europe, he thinks. For example, by taking Poland to the European Court in Luxembourg. This judicial institution assesses whether Member States properly comply with EU law. Poland has already been convicted several times there for violation of judicial independence.
According to Morijn, it is “100 percent certain” that the European Commission will take Poland to the European Court. It remains to be seen when that will happen and in what order.
“They may first attach financial consequences to it, by giving less or no more money to Poland,” he says. The Commission can do this, for example, by suspending Covid funds intended for corona control, or by reducing the fixed amounts that the country receives.
Deputy of the Polish ombudsman Tabarowski would understand if the European Commission chose to do so, but sees the consequences gloomy. He mainly fears that the consequences of the sanctions will end up on the Polish citizen. “That is of course a development that I do not want for my country.”
According to Morijn, the situation in Poland also has direct consequences for the Netherlands. “If we start a company and we want to export to Poland, we will have to deal with Polish judges there. You can get into trouble there with an activity that is protected by European law. When the Polish judge is no longer independent, you know “You are no longer where you stand. Normally you can then go to the European court that is above it. That is no longer possible.”
Morijn believes that there is an interest at stake that applies to all European countries. “The direct effect and primacy of European law is a cornerstone of European law. If you work with 27 legal systems, you should not have 27 types of implementations of the law. Otherwise it will be a mess.”
“It now seems to be a legal problem, but it is much broader than that. We are dealing with a Member State that does not apply European law. That is problematic for mutual trust in the EU.”