Poland-EU dispute has less to do with the rule of law than Europe’s future

While the war in Ukraine rages on, a battle is emerging over the direction of the European Union. Brussels is showing no signs of backing down with Poland and Hungary over the issue of rule of law reform. 

The European Parliament has urged its fellow EU institutions to do more to tackle the issue of democratic backsliding in Poland and Hungary. MEPs called on the Council to show “genuine commitment” and “make meaningful progress” to protect European values.

When did the EU’s rule of law problem start? After securing the first absolute majority in the Sejm since the fall of communism in 1989, Law and Justice began overhauling the Polish judicial system. Jarosław Kaczyński, the leader of Law and Justice, believes the changes are needed to redress a system where Poland’s former communist rulers still wield political power in the Polish Third Republic. The European Commission, on the other hand, says the reforms under the Law and Justice government are a threat to the independence of the judiciary. 

The central sticking point in the long-standing feud is the Polish government’s plans to establish a Disciplinary Chamber for Poland’s Supreme Court, which would have the power to punish judges for the content of their rulings. The Court of Justice of the EU ordered Poland to immediately suspend the functioning of the controversial body. However, Poland defied the CJEU in a dramatic fashion when the Constitutional Tribunal ruled that parts of the EU treaties were incompatible with the Polish Constitution. 

Many were quick to judge Poland’s landmark ruling as an unprecedented challenge to the EU’s legal order. Ms von der Leyen said she was “deeply concerned” and told the Commission to analyse the ruling “thoroughly and swiftly” before taking the necessary steps. Poland positioned itself on the path towards leaving the EU as a consequence of the “illegitimate Constitutional Court” findings, according to the Justice and Home Affairs Spokesperson for the liberal-conservative European People’s Party, Jeroen Lenaers.

But a close examination of the Tribunal’s ruling finds that neither a rejection of the EU treaties in their entirety nor an unprecedented challenge to the principle of EU legal supremacy were made. 

Paragraphs 1 and 2 of Article 1 of the Treaty on European Union (TEU), says that the Member States establish ‘a European Union’ and bestow it with ‘competencies to attain objectives they have in common’ and aim to create ‘an ever closer union’, were rejected. In addition, the Tribunal rejected Articles 2 and 19, which define the EU’s values and place an obligation on the Member States to enable the ‘effective judicial protection in the fields covered by Union Law’ respectively. 

Poland’s issue with the primacy of EU law over national law may offer a clearer understanding of the rationale behind the Tribunal’s decision. 

Far from advocating “Polexit”, Poland’s prime minister, Mateusz Morawiecki, is staunchly committed to his country’s membership in the EU. Mr Morawiecki described European integration as a “civilisational and strategic choice” in a speech to the European Parliament last year. This suggests that the legal fallout with the Commission has more to do with concerns over the trajectory of the EU than with the rule of law as the opponents of Law and Justice argue.

After the ruling was read, Poland’s prime minister made his support for the EU abundantly clear in a letter to the European Council, the European Commission, and the European Parliament. Mr Morawiecki wrote that Poland remains “a loyal member of the European Union…“based on common Treaties, established by all Member States which have entrusted a number of competencies to common institutions and have jointly regulated many areas of life through European law”.

The area of concern for Morawiecki is the emerging unlimited primacy of EU law. According to Ursula von der Leyen, the ruling of Poland’s Constitutional Court ‘undermines the protection of judicial independence as guaranteed by Article 19 of the Treaty’ (TEU). This clashes with Morawiecki’s interpretation, which holds that national constitutions must retain their legal primacy. An explanation of the alleged interference of the Polish prime minister in the French presidential election in favour of Marine Le Pen may be found in the affinity he shares with the far-right candidate’s views on the EU as purely an alliance of nation-states.

The decision of Poland’s Constitutional Court can rightly be seen as a challenge to the values that bind the EU together. However, it is equally the case that Poland is within its authority to do so. Neither the 1957 Treaty of Rome, the founding document of the European project, nor any subsequent EU Treaty, enshrined the principle of EU legal supremacy. The landmark ruling in Warsaw may therefore become a key turning point for the EU. Poland’s Constitutional Tribunal made a significant step towards protecting national sovereignty from being transferred to the European level.

The outcome of the dispute between Poland and the EU looks far from foreseeable. This is because of a fundamental misalignment between Warsaw and Brussels over how the EU should evolve. Poland believes it is the member states who have the ultimate say over the direction of the European project, while the Commission sees its role as the guardian of the EU treaties. What is for certain is that Poland and its post-communist political development are inextricably linked with the future course of European integration.