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Poland's top court has finally called the EU's bluff

9 October 2021

12:26 PM

9 October 2021

12:26 PM

For many years, the EU has posed as a kind of overbearing imperial leviathan, which insists its law has to prevail over that of the states that make it up. Now its bluff appears to have finally been called: the Polish constitutional court in Warsaw ruled yesterday that some EU laws are in conflict with the country’s constitution. Understandably, Brussels is not happy. But what can it do about it?

The background to all this is a spat between Brussels and Warsaw about whether Poland’s machinery for appointing judges to its own courts is EU-compliant. Brussels says it is not, because under it judicial impartiality cannot be guaranteed. This, it says, is contrary to EU law – and it has a judgment of the EU Court of Justice to back it up.

But Warsaw says this is none of the EU’s business, since the whole matter of judicial appointments is governed by the Polish constitution of 1997; sure enough, it has a contrary judgment from the Polish courts supporting its case.

To break the impasse – and make it clear who was boss in Poland – some weeks ago the Polish government asked its constitutional tribunal to rule on whether EU law as laid down by the EU Court of Justice could ever override the Polish constitution. The finding yesterday was, quite simply, that it couldn’t. It followed that whatever might happen in Brussels – and whatever the EU treaties might say – Polish judges had to follow the Polish constitution.

Who is right in law is unclear. The EU and the Euro-elite, raised from infancy on the idea of the EU as a sublime and unique legal-political order, regard the Polish position as an obvious heresy. On the other hand, there is much legal (and for that matter democratic) logic in the argument of the Polish court: the ability of a government to surrender powers to the EU by joining it derives from the constitution establishing it. This means it cannot be used to override or subvert it.


But in any case the legal niceties don’t matter much. The real significance of the decision is overwhelmingly political and not legal. Even though the makeup of the Warsaw judiciary is remote from events 700 miles away in Brussels – and highly unlikely to affect them in any noticeable way – this event has spooked the Eurocracy big-time.

Until this decision, there was an agreement between Brussels and local elites that the integrity of the EU legal order had to be preserved at all costs. Now that has gone. This opens up the frightening prospect that member states generally might dare to question Brussels’ dictat; a fear aggravated by the fact that the German constitutional court has already made guarded suggestions to much the same effect.

It has also greatly reduced Brussels’ ability to discreetly extend its tentacles further by persuading a complaisant Court of Justice to interpret EU treaties in its favour. (Indeed this was essentially what had happened when the Court decided it could interfere with Polish judicial appointments in the first place. No such power appeared in the treaties, but the Court said, with some little chutzpah, that it must obviously be implied because local courts might have to apply EU law, which made their composition the EU’s concern.)

What are likely to be the long-term effects of this affair once the outrage has died down? Brussels’s options to force Poland’s hand are limited. Theoretically it could get the European court to order Poland to make its constitution expressly subject to EU law and threaten to levy a daily fine on the state if it didn’t. But demanding that states effectively give up their constitutions is a drastic matter, and in any case it is a racing certainty that if the EU did this Poland would simply refuse to pay.

Alternatively Brussels could, as a last resort, withdraw Covid reconstruction funds and regional aid payments until Poland falls into line. It has the legal power to do both, and there will be plenty of calls from progressives for it to use it as soon as possible. But that would carry other risks.

The Polish electorate is currently one of the most pro-EU in the bloc; but one suspects this is to a large extent connected with the generous subventions – well over €13 billion (£11 billion) a year net – that Poland gets from the EU. Withdraw those subventions, and there is a distinct risk that a bad-tempered and politically disastrous Polexit would move fast from the unthinkable to the distinctly possible.

In practice, one suspects two things will now happen. First, Brussels and Warsaw will probably patch up a face-saving deal over the Polish judiciary, under which, in exchange for minor concessions by Poland, Brussels will withdraw its complaints.

Secondly, however, and much more significantly, this is likely to alter the relation between Brussels and the EU members irrevocably. The European Commission will be forced, through gritted teeth, to accept that the days are over when it could impose its will on member states simply by mouthing the words ‘superiority of EU law’.

In future, whether they like it or not, the elite in Brussels will know that any drastic attempts to interfere further in its members’ internal affairs will be subject to a de facto veto. To this extent the Warsaw court’s judgment may well have changed the nature of the bloc for ever. And, as most people who are not die-hard Europhiles will agree, almost certainly for the better.

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