On Thursday Oct. 7, Poland’s Constitutional Tribunal ruled that Poland’s national laws take supremacy over European Union (EU) laws, This marks the end of a cumulative battle between thePoland’s right-wing government and the EU. Since assuming his position in December 2017, Poland’s Prime Minister Mateusz Morawiecki implemented several changes to the Polish judiciary designed to bring the itunder the control of the PM’s conservative party. After the European Court of Justice (ECJ) ruled that these changes violated EU law, PM Morawiecki took the decision to Poland’s Constitutional Tribunal, who voted overwhelmingly in favor of the Polish government, with only two of the fourteen judges dissenting. This momentous decision signified the primacy of Polish legislation over E.U. law, which has historically helped supremacy over national legislation.
Erosion of Polish Democracy
For many in Poland, Thursday’s landmark decision does not come as a surprise. PM Morawiecki is a prominent member of the far right, populist Polish Law and Justice Party (PiS) that receives support from roughly 38% of Poles. The PiS’s conservative agenda involves the re-Christianization of Europe, restriction of LGBTQ+ rights and abortion, limiting free press, and “reforming” the judiciary to strongly align it with party leadership.
Of Poland’s many right-wing reforms, the reforms to the judiciary are some of the most concerning and have led to the clash with the EU. Poland’s reforms first raised eyebrows when the retirement age for female and male judges was lowered in 2017, making the new retirement age for women five years earlier than the retirement age for men and forcing around 100 judges to retire early from their positions only to be replaced by PiS loyalists. Further, the law gives the Polish Minister of Justice the ability to allow select justices to continue working past the age of retirement–another way for the PiS to assert control over Poland’s judiciary. Facing criticism from the EU in 2018, Warsaw made amendments to the law that lowered the retirement age of men and women equally, but ultimately the law was still deemed unconstitutional.
The same year, Poland rolled out more sweeping reforms that changed the way judges are appointed and increased their control over the appointment process by establishing a disciplinary regime for judges who challenge Polish judicial reforms. This includes lowering their salaries, suspending their positions within the court, pursuing legal action against them, or detaining them. In response, the European Commission asked the European court of justices (ECJ) to suspend all rulings put forth by the Polish disciplinary chamber while the European Commission pursues legal action against Poland.
The EU’s Response
There has been growing concern over Poland’s shift away from democracy, reflected by its infringements upon judicial independence, under PiS leadership. The European Commission has used legal and financial avenues to discipline Poland. In 2017, the EU invoked Article 7 of the Lisbon Treaty as in response to Poland’s dramatic judiciary reforms. The EU can vote to invoke Article 7 when a member country breaches the EU’s fundamental values; this results in the nation receiving a formal warning. If the EU votes unanimously to take further action against the state, Article 7 can go so far as to restrict voting rights within the EU and induce economic sanctions against the state, earning it the label of the “nuclear option.” The European Commission has also withheld $66 billion designated for Poland from the coronavirus relief fund.
What are the implications for the entirety of the EU?
The possibility of a Polexit — describing Polish withdrawal from the E.U. — does not seem likely. After nationwide protests erupted, Prime Minister Morawiecki assured that he will not seek a Polexit, calling it “a harmful myth, which the opposition uses for its own lack of ideas about Poland’s responsible place in Europe.” Although the government’s reforms directly conflict with EU values, a staggering 90% of Poles support Poland’s membership to the EU. The union also provides much funding to the Polish government. However, the EU maintains a hardline stance against erosions of Polish democracy. The President of the European Parliament notably criticized the Polish Constitutional tribunal decision and argued that “the primacy of E.U. law must be undisputed.” Many other countries have also experienced friction with the EU. Hungary and Germany are engaged in separate legal battles with the European entity for different reasons. The Poland-EU dispute is nowhere near resolved, but its outcome will certainly have lasting implications on the future of the EU.
Liz Peron is a freshman majoring in International Studies at Johns Hopkins University. She is originally from Westchester, NY and is a member of the Editorial Team at Hopkins Podcast on Foreign Affairs.