RUTHFULLY YOURS

• Poland’s Constitutional Tribunal has ruled that Polish law takes precedence over European Union law.
• The power struggle has angered European federalists, who are seeking to turn the 27-member EU into a European superstate — a United States of Europe — and who do not take kindly to those who challenge their authority.
• “We ought to be anxious about the gradual transformation of the European Union into an entity that would cease to be an alliance of free, equal and sovereign states, and instead become a single, centrally managed organism, run by institutions deprived of democratic control by the citizens of European countries.” — Polish Prime Minister Mateusz Morawiecki, in an October 18 letter to EU leaders.
• “Today’s judgment of the Constitutional Tribunal is an appeal to the EU bodies to stop violating the treaties by trying to obtain through usurpation and blackmail competences that have not been obtained in the treaties.” — Polish Deputy Justice Minister Sebastian Kaleta.
• “The call for the ‘Polexit’ could become a self-fulfilling prophecy. The European Union is committing suicide in its drive for unity.” — Commentator Marco Gallina, Tichys Einblick.
• “It is not the truth that is at stake here but the EU seeking to get rid of the inconvenient government in Warsaw. According to the EU, Europe is to be progressive, open, liberal, tolerant and uniform. Anyone who does not like it has no place in the EU.” — Commentator Aleksandra Rybińska, writing for the Polish media group Wpolityce.

Poland’s Constitutional Tribunal has ruled that Polish law takes precedence over European Union law. The landmark ruling, which seeks to reassert national sovereignty over certain judicial matters, has called into question the legitimacy of the EU’s supranational legal and political order.

The power struggle has angered European federalists, who are seeking to turn the 27-member EU into a European superstate — a United States of Europe — and who do not take kindly to those who challenge their authority.

The EU, which Poland joined in 2004, has vowed to retaliate, including with potential financial penalties. Poland, which threw off the yoke of Soviet domination in 1989, replied that EU institutions are unlawfully overstepping their powers.

Poland is not the only country to challenge the supremacy of EU law. The United Kingdom, once the EU’s second-largest member state, officially left the bloc in 2020 to reclaim its sovereignty from the tentacles of the EU administrative state.

More recently, Germany’s Constitutional Court issued an unprecedented ruling that directly challenged the authority of the European Central Bank to purchase vast amounts of government bonds, a monetary policy known as quantitative easing. The German court ruled that the practice is illegal under German law as neither the German government nor the German parliament signed off on the purchases. The EU’s legal feud with its largest member has threatened to unravel not only Europe’s single currency, the euro, but the EU itself.

Poland says that it has no plans for a “Polexit.” Unlike Britain before its Brexit referendum in 2016, popular support for EU membership remains high. If, however, Poland were to leave the EU, it would cast doubt on the bloc’s future viability.

Poland’s dispute with the EU revolves around sweeping judicial reforms implemented by the ruling Law and Justice party (PiS) since 2015. The government has argued that its changes were necessary to tackle corruption in a justice system dominated by communist-era judges, but critics, including the European Commission, the EU’s administrative arm, say the reforms have eroded the independence of Poland’s judicial system.

The European Court of Justice recently ruled that Poland’s new regulations for appointing Supreme Court justices could violate EU law and ordered the Polish government to suspend them.

Polish Prime Minister Mateusz Morawiecki responded by asking Poland’s Constitutional Tribunal to determine whether EU institutions were overstepping their authority. On October 7, the Tribunal declared that the Polish Constitution has primacy over EU laws in some cases. The ruling states that the EU oversteps its authority whenever: a) EU authorities act outside the scope of the competences conferred to them by Poland in the EU treaties; b) the Polish Constitution is not recognized as the supreme law of the land; and c) Poland is not allowed to function as a sovereign and democratic state.

The dispute over judicial reforms is part of a bigger power struggle between Poland and the EU, which routinely interferes in Polish domestic politics on issues ranging from social policy to mass migration. In recent years, European officials have filed scores of lawsuits against the Polish government aimed at forcing Warsaw to comply with demands from Brussels.

The root cause of the tensions is a worldview conflict: Poland is one of the most conservative countries in Europe and the Polish government, supported by a large segment of the population, believes that Polish society should be organized around the principles and values of Roman Catholicism. This is directly at odds with the post-Christian worldview held by most EU officials, many of whom worship at the altar of multiculturalism. The conflict has been instigated and perpetuated by unelected bureaucrats in Brussels who want to remake Poland in the EU’s image.

Poland Explains its Position

Polish Prime Minister Mateusz Morawiecki, in an October 18 letter to EU leaders, explained his government’s position:

“I am writing this letter to reassure you, and at the same time to make you concerned.

“I wish to reassure you that Poland remains a loyal member of the European Union. A European Union that is an organization based on common treaties, established by all Member States which have entrusted a number of competences to common institutions and have jointly regulated many areas of life through European law. Poland respects this law and recognizes its primacy over national laws, pursuant to all our obligations under the Treaty on European Union.

“At the same time, however, I want to make you concerned — and draw your attention to a dangerous phenomenon that threatens the future of our Union. We ought to be anxious about the gradual transformation of the Union into an entity that would cease to be an alliance of free, equal and sovereign states, and instead become a single, centrally managed organism, run by institutions deprived of democratic control by the citizens of European countries. If we do not stop this phenomenon, all will feel its negative effects. Today it may concern just one country — tomorrow, under a different pretext, another….

“Poland fully respects European law, as well as the judgments of the Court of Justice, like any other Member State. The obligation for each Member State to respect EU law derives directly from the Treaties — we are obliged to do so to the extent required in the Treaties. Not one iota less — and not one iota more.

“The principle of the primacy of EU law covers all legal acts up to the level of statutory rank in the areas of Union competence. This principle, however, is not unlimited. In every country, the Constitution retains its primacy. The assessment of where the border lies can only be made by the courts — both the Court of Justice of the European Union and our national constitutional courts. Each of them is the ‘guardian of the constitution,’ which ultimately decides on the legality and validity of the norms applied in a given territory. This is the role for which they were appointed by the creators of the constitutional judiciary.

“The Constitutional Tribunal of the Republic of Poland has the same rights as courts and tribunals in any other EU country. They can verify the compliance of EU primary law with their own constitutions, and they have been doing so consistently for many years, even decades. Individual judgments deal with broader or narrower issues, but their essence remains unchanged — the primacy of EU law over national law exists and although it is wide in scope, it has its clear limits.

“These boundaries are determined not only by the constitutional or statutory nature of national legal norms but also by the subject matter covered by EU law. The principle of conferral, as defined in Article 4 and 5 of the Treaty on European Union, is the guiding principle of the Union. It means that the competences of the European Union bodies extend only to matters which we have entrusted to them within the Treaties. Attempts to expand these competences cannot be accepted. Any such action should be considered ultra vires, and by its very nature contrary to the treaty principle of the rule of law. No European Union body should take action that is not authorized to by the Treaties.

“This issue does not raise any doubts in the decisions of tribunals and constitutional courts of the EU Member States. Indeed, these courts have repeatedly stated that some actions of the European Union institutions, in particular those of the Court of Justice of the EU, exceed the powers granted by the Treaties. As a consequence, national courts have consistently decided that individual judgments of the CJEU — as delivered ultra vires [beyond one’s legal power or authority] — are not binding on a particular Member State.

“The Polish Constitutional Court does nothing today that the courts and tribunals in Germany, France, Italy, Spain, Denmark, Romania, the Czech Republic or other EU countries have not done in the past. It is a well-trodden path of jurisprudence, which is by no means a novelty. None of these judicial decisions led any Member State astray with European integration. Each of them was a statement and confirmation of the facts that result from the letter and spirit of European law…. The Polish Constitutional Court has repeatedly ruled on the primacy of the Polish Constitution over European Union law. These judgments have never been challenged by the Commission. This is simply because the review of compliance of international law with the national constitution does not infringe EU law.

“Pursuant to Article 4 of the Polish Constitution, the supreme authority in the Republic of Poland belongs to the nation. An expression of this principle is also the hierarchy of sources of law, according to which it is the Polish basic law — adopted by the Nation as the highest expression of its political will — that precedes other sources of law, such as acts or even international agreements ratified by Poland. No government may depart from this principle — as this would be a flagrant breach of the Constitution and be incompatible with the principle of national sovereignty….

“No sovereign state can agree to such an interpretation. Accepting it would effectively translate into the European Union ceasing to be a union of free, equal and sovereign countries. Such a fait accompli approach would transform the European Union into a centrally managed state organism, whose institutions can force whatever they want within its ‘provinces’, regardless of any legal basis.

“This is not what we agreed to in the Treaties. Poland fully complies with EU law. Like every other Member State, this right gives our country specific obligations and rights. One is the right to demand that EU bodies act only in matters for which they are entrusted, and not the ones beyond their competences.

“Unfortunately, today we are dealing with a very dangerous phenomenon whereby various European Union institutions usurp powers they do not have under the Treaties and impose their will on Member States per fas et nefas [through right and wrong]. This is particularly evident today as financial tools are being used for such a purpose. Without any legal basis, there is an attempt to force Member States to do what the institutions of the Union tell them to do — irrespective of any legal basis to impose such demands.

“Such a practice cannot be accepted. Not only because it is illegal, but above all because it is dangerous to the continuation of the European Union, by weakening all Member States. The Union is strong due to the strength of its members. Their weakening, by subordinating Member States to the practically unlimited power of centrally managed institutions, deprived of democratic control, may ultimately lead to a complete detachment of decision-making mechanisms from the will of citizens, for instance in democratic elections — and to the transformation of the Union into an organization that contradicts our common values: freedom, democracy, equality, rule of law, pluralism, non-discrimination, tolerance, justice and solidarity.

“There are consequences, and we must bear them in mind. Today, the attention of the EU institutions is focused on Poland. And Poland is determined to defend its sovereignty and the principle of conferral. Let us remember, however, that if any state can be forced to act in violation of its sovereignty today, a precedent would be set. The effects will inevitably be felt by other countries in the future.”

European Responses

The President of the European Commission, Ursula von der Leyen, pledged that the Polish challenge to the supremacy of EU law will not be left unanswered, but she did not say what the bloc would do, or when. In an October 8 statement she said:

“I am deeply concerned by yesterday’s ruling of the Polish Constitutional Tribunal. I have instructed the Commission’s services to analyze it thoroughly and swiftly. On this basis, we will decide on next steps….

“Our Treaties are very clear. All rulings by the European Court of Justice are binding on all Member States’ authorities, including national courts. EU law has primacy over national law, including constitutional provisions. This is what all EU Member States have signed up to as members of the European Union. We will use all the powers that we have under the Treaties to ensure this.”

EU Justice Commissioner Didier Reynders said that “all tools” would be used to preserve EU law in Poland and that the principle of the supremacy of EU law was “at the heart of the union.” In an interview with the London-based Financial Times, he said that a proliferation of similar legal challenges by EU member states, including France and Germany, posed a “real threat to the very architecture of our union.” He added:

“What is the risk if we don’t take care of this? It is that we will destroy the union itself. When we have a problem in one member state, the risk is a spillover effect, that you will have in all the member states, or in some member states, a tendency to challenge the primacy of EU law and the exclusive competence of the Court of Justice.

“If you don’t stop that, you will have more and more possibilities for different member states to challenge the primacy of EU law and the competence of the ECJ.”

In a joint statement, German Foreign Minister Heiko Maas and French Foreign Minister Jean-Yves Le Drian, said:

“Membership of the European Union goes hand in hand with full and unconditional adherence to common values ​​and rules. Respect for the latter is incumbent on each Member State and therefore of course also on Poland, which occupies an essential place within the European Union.

“It is not just a moral commitment. It is also a legal commitment.

“In this context, we reiterate our support for the European Commission so that, in its capacity as guardian of the Treaties, it ensures respect for European law.”

Clément Beaune, Secretary of State for European affairs in the French government, said that the Polish court’s ruling was “an attack on the European Union.” He accused the Polish government of not respecting “fundamental European values.”

The leader of the Poland’s ruling Law and Justice party, Jaroslaw Kaczynski, welcomed the verdict:

“In Poland, the highest legal act is the Constitution and all European regulations that are in force in Poland must comply with the Constitution. This also applies to the judiciary and the European Union has nothing to say here.”

Polish government spokesperson Piotr Muller said that the ruling confirmed “the primacy of constitutional law over other sources of law.”

Poland’s deputy justice minister, Sebastian Kaleta, tweeted:

“Today’s judgment of the Constitutional Tribunal is an appeal to the EU bodies to stop violating the treaties by trying through usurpation and blackmail to obtain competences that have not been obtained in the treaties. The EU has no right to interfere with the Polish judiciary.”

Kaleta added:

“This is not only about Poland. The issue is that some European officials are trying to give the EU greater competences without changing the treaties. This is very dangerous, because it will implode the EU from within.”

EU Economic Commissioner Paolo Gentiloni warned that the Polish court case could have “consequences” for the disbursement of stimulus funds to Poland. The Polish government responded: “We’re not giving in to any blackmail.”

European Parliament President David Sassoli said that he was preparing to file a lawsuit against the European Commission for its failure to apply a mechanism, known as the Conditionality Regulation, which requires the cutting of funds to EU member states accused of breaching the principles of the rule of law. The mechanism, which was adopted in December 2020, has never been used.

Poland, along with Hungary, have challenged the mechanism at the Court of Justice of the European Union. They say it is not intended to uphold the rule of law but to administer a political punishment.

“It’s not a conditionality regime, it’s a mechanism to impose a sanction,” said Sylwia Żyrek, a lawyer representing the Polish government. Miklós Zoltán Fehér, a senior official from the Hungarian Ministry of Justice, argued that the measure was a “political procedure with a political intent.”

German Chancellor Angela Merkel has cautioned the EU against rushing to halt funds to Poland: “I think we can wait for this decision of the European Court of Justice now.” She called on the EU to negotiate with Poland. “I think it is now time to talk in-depth with the Polish government, how we can overcome the difficulties,” she said. “We have big problems, but my advice is to solve them in talks, to find compromises.”

Merkel said that she does not agree with those who believe that “political differences” should “always be resolved through court proceedings.” She added: “That’s why I’m a bit concerned about the large number of cases that are now being settled in court.”

The chancellor also criticized the European Parliament over its threat: “From my point of view, I find it a bit saddening, if I may say so cautiously, when the Parliament says that now we may have to sue the Commission. I don’t think that will lead to anything.”

Select Commentary

Commentator Georg Gafron, writing for the German blog Tichys Einblick, provided some historical context to the standoff between Poland and the EU:

“Poland has been in the dock of the Brussels establishment for a long time. Like Hungary, the fledgling democracy is accused of violating ‘European values.’ Specifically, it is about the independence of the Polish judiciary, which would be called into question by the conservative government majority under the leadership of the PiS party….

“But there is more to the story. Each member of the EU has its own history and therefore special experiences. Just over thirty years ago, the Poles suffered from a harsh communist dictatorship. The people there tried several times to shake off the system that ruled under Soviet sovereignty….

“As everywhere in these countries, the question of how to deal with the old elites arose after the so-called Wende [transition]. Many of the old communist cadres were far superior to the new forces in the technique of power. Many managed to save their privileged positions after the fall of the dictatorship. In addition, due to the economic difficulties of the upheaval, currents and parties of the past regained power. The judicial system turned out to be one of the most resistant institutions in Poland. Judges and prosecutors who had actively participated in the suppression of the democratic opposition not only stayed in office but were given new long-term employment contracts. This aroused resentment and bitterness in large parts of the Polish population.

“When the conservative PiS party, after taking office in 2015, with its extremely anti-communist stance and its commitment to Catholicism as a social basis, began to implement its ideas, there was resentment, especially among liberal and left-wing Polish intellectuals, but also in Western Europe.

“One could get the idea that it would have been a good thing in the Federal Republic of Germany after the [second world] war if such a democratization had taken place in the courtrooms and in the judiciary. All of these aspects are ignored by the Western critics of Poland although they too belong to the truth. And one more thing is ignored in the West, with its spectrum of opinion dominated by the left: In Poland, as, by the way, in Hungary, which is under the same criticism, faith, embodied by the Catholic Church, plays a role that is hardly understood in this country [Germany]. In the dictatorship that had existed for many decades [in Poland and Hungary], the church was the only institution that represented a spiritual alternative to Marxist indoctrination in times of need and especially in the event of political persecution.

“Poland’s Prime Minister Mateusz Morawiecki stressed the sovereignty of his country and the right to its own national constitution, which cannot be repealed by external regulations. Western Europeans would be better off with a little more empathy for the country that had to suffer from foreign rule and dictatorship for decades — including the German occupation between 1939 and 1945.”

Commentator Marco Gallina added that German politicians and media hostile to Poland were agitating against the Polish government and people:

“The decision [the Polish court ruling] provoked sharp media and political reactions in Germany. Florian Neuhann [Brussels correspondent for ZDF, Zweites Deutsches Fernsehen, Germany’s national public television broadcaster] described the ruling as a ‘catastrophe.’ A ‘red line’ had been crossed because the EU hesitated far too long with its rule of law mechanism. ‘It is simply inconceivable that Poland will receive aid from the reconstruction fund after this ruling.’ And: ‘A Polexit would be a disaster for all parties involved. Unfortunately, after this judgment it has to be on the table as an option.’

“MEP Moritz Körner [of the FDP, Germany’s classical liberal Free Democratic Party] made a similar statement: ‘Poland is sleepwalking towards leaving the EU. The #Polexit is no longer just a pipe dream of right-wing populists in Poland, but unfortunately a real danger. All EU funds earmarked for Poland must be frozen with immediate effect. The next election in #Poland will now be a fateful election about whether Poland can remain a member of the EU or not.’ Katharina Barley [of the SPD, the left-leaning Social Democratic Party], Vice-President of the EU Parliament, said the EU Commission must now ‘draw conclusions.’

“The [left-leaning] newspaper Die Zeit also shot against Warsaw: ‘From a legal point of view, the judgment shows in all its shamefulness and twistedness that this dispute cannot be resolved. It has finally passed over from the realm of law into the sphere of power. The EU will no longer be able to achieve anything with statements. It must now rely on sanctions: as long as Poland does not restore the independence of its courts, it cannot participate in the billions in aid from the Coronavirus recovery fund.’

“If Eastern Europe doesn’t submit to what Western Europe wants, then the elites in Brussels and Berlin quickly lose their tolerant face. The hashtag ‘Polexit’ has dominated the Twitter trends since yesterday. The German statements are strikingly reminiscent of Brexit. The fact that not only EU politics, but also German behavior, played a part in the UK’s exit, is one of the repressed chapters of the recent past. Due to historical experience, the Polish neighbor is much more sensitive when it comes to German imperialism — and when it is only of a moral nature. The call for the ‘Polexit’ could become a self-fulfilling prophecy. The European Union is committing suicide in its drive for unity.”

The editors of the German blog Achgut [Axis of Good] published the full text of Polish Prime Minister Mateusz Morawiecki’s speech to the European Parliament. The blog was subsequently besieged with criticism from the German establishment. A Die Zeit headline proclaimed: “From the Toolbox of Right-Wing Populists.” Manfred Weber, chairman of the center-right European People’s Party Group [the largest and oldest group in the European Parliament] declared: “With your speech you are sowing rifts and strife in the EU.” Achgut replied: “What did the Polish Prime Minister actually say? Achgut.com documents his speech in the German translation of the original Polish text. You can form your own opinion. Where is the scandal?”

Writing for the Financial Times, Martin Sandbu examined the vulnerability of Poland and Hungary to EU financial pressure:

“The scale of EU transfers is so big that if they stop flowing, the effect cannot be staved off for very long. EU money spent in Poland amounts to about 4 per cent of its national income; for Hungary it is closer to 5 per cent. The one-off RRF grants [the Covid-19 Recovery and Resilience Facility] will again amount to about 5 per cent of their annual national incomes. Will their strong electoral support survive a sustained underperformance because of a withdrawal of EU financial support? We do not know — again, this has not been tested. But we may be about to find out. There are good reasons to think Brussels’ financial weapon can hurt enough, and fast enough, to be as effective as opponents of Warsaw and Budapest think.”

The inestimable Spanish commentator “Elintir,” who edits the blog Contando Estrelas, wrote:

“Poland is facing, once again, some thugs who believe that that nation is capable of giving up its freedom through blackmail.

“One of the most representative images of this week has a first and last name: Mateusz Morawiecki. The Prime Minister of Poland stoically endured, and without lowering his eyes, the insults of the left and the [center-right] People’s Party, in a shameful session of the European Parliament that was intended to humiliate Poland and make it bend to attempts to impose the ideological agenda of the left over the national sovereignty of the member states. The Polish people rejected that ideological agenda at the polls, and now Brussels is trying to impose it on them through blackmail, threatening to withdraw EU funds if they do not submit to the anti-democratic impositions of the EU.”

Polish political commentator Aleksandra Rybińska, writing for the media group, Wpolityce, concluded:

“Brussels is not engaged in a dispute with Poland for the sake of the rule of law or the compliance of judicial appointments with EU law. In fact, it is something completely different. The EU institutions are trying to expand their competences (through the case law of the CJEU) beyond what has been granted to them under the treaties, competing with each other over which of them has more influence. This battle takes place under the guise of a great narrative with universal values.

“In addition, there is a certain protective reflex. European integration, further uniformization, even the most lopsided, is a guarantee of the continued existence of EU institutions. Their reproduction. And everywhere in Europe political forces have appeared that reject this uniformity. They pose a threat to the vital interests of the Brussels conglomerate.

“The ambition to decide everything and everyone has reached such a level that MEPs recently debated abortion law in Texas. There are no limits to EU competences. They reach not only Europe but even the United States.

“The European elite openly say that the ‘populists’ in Europe must be eliminated, and that the governments in Poland and Hungary must change…. This was also clearly heard during the debate after Prime Minister Morawiecki’s speech: Poland is cool, so are Poles, but the Polish government is ‘disgusting.’ The Poles made the wrong choice, you can forgive them, but fortunately the European Commission and the European Parliament can correct this mistake. This is nothing new anyway. This has been the case since PiS took power. It’s just that only now Brussels has obtained an effective tool: the so-called rule of law mechanism….

“It is not the truth that is at stake here but the EU seeking to get rid of the inconvenient government in Warsaw. According to the EU, Europe is to be progressive, open, liberal, tolerant and uniform. Anyone who does not like it has no place in the EU. In a situation where Poland is the most conservative state in the EU, it is obvious that we will be on a collision course with the increasingly clear progressive agenda of the EU institutions.

“Therefore, one has to take into account that the payment of funds from the European Reconstruction Fund to Poland may be withheld, or even the payment of funds from the multiannual financial framework for 2021-2027 may be withheld.

“If that happens, it will of course be a double-edged sword. Such a decision may become an element that strengthens another story, the one in which the EU, through undemocratically selected institutions, humiliates and tries to dominate peripheral member states. A certain precedent will be created. And if you can treat Poland like that, you can treat every other country like that. Moreover, Poland will not be a net beneficiary of EU funds forever, but will become a net payer in the near future. We are already not only collecting funds from the EU budget, but also paying them there. By collecting Poland from EU funds, Brussels will use the only bargaining chip it has. The nuclear option. What if that doesn’t work either? What else can they do to us?

“It is undoubtedly a battle for the future shape of the European Union and for Poland’s place in the European community. Will we be a member of the second category, will we be treated as a ‘young, immature democracy’ that needs to be brought up, as some Western MEPs emphasized, or will we fight for subjectivity and equal treatment? For the rule of law will not end.

“The ambitions of the European Union go further: striving for climate neutrality, costly for countries such as Poland, a left-liberal moral agenda. This is only the beginning of the battle, not the end. Regardless of whether the European Commission decides to freeze our resources from the reconstruction fund or not.”

Veteran EU commentator Wolfgang Münchau, writing for the UK-based magazine, The Spectator, warned that continued EU harassment could result in Poland leaving the bloc:

“The EU is notoriously bad at learning from its own mistakes, mostly because it is unable to recognize these mistakes in the first place….

“A mistake the EU has not recognized yet is its role in Brexit: how it negotiated with David Cameron, and how it sided with the second referendum after the election, thus helping to create the political backlash that has destroyed even the faintest hope of a rapprochement with the UK.

“In what may be her last European Council, [German Chancellor] Angela Merkel yesterday spoke truth to power when she warned her fellow leaders not to treat Poland in the same way. There are many reasons to question Merkel’s legacy, but she is right in her skepticism of the rule of law mindset at the heart of European politics right now….

“Polexit remains an unlikely event, given the overwhelming support for the EU among Polish voters. However, support for the EU in the UK was also very high — but then dropped suddenly during the referendum campaign. We should recall that right up to the end, the opinion polls systemically underestimate the support for Brexit and for politicians that advocated it. The overwhelming lesson of Brexit is that excessive confrontation can quickly produce anti-European majorities.”

Soeren Kern is a Senior Fellow at the New York-based Gatestone Institute.