2 November 2021
On October 8, after much deliberation, the Polish government published its Constitutional Tribunal finding which allows for the primacy of the Polish constitution over some of the EU laws. The tribunal highlights its incompatibility with four specific articles of the Treaty on the European Union (TEU) – Article 1, Article 2, Article 4(3), and Article 19. Article 1 establishes the foundation of the EU, while Article 2 emphasises normative values such as rule of law, freedom, democracy, equality, and respect for human rights. Similarly, Article 4(3) underlines mutual respect in assisting each other in carrying tasks from the treaties and Article 19 allows the European Court of Justice (CJEU) to ensure in interpretation and application of treaties the law is observed. By declaring incompatibility, the Polish government has effectively rejected the enforceability of the EU laws in Poland. Ursula von der Leyen, European Commission President, has expressed deep concerns with regards to the ruling as such ruling jeopardises the legal framework on which the EU exists, and the ruling also threatens the rule of law and respect to human rights especially for LGBTQ residents in Poland. She also added the Commission would commit “all the powers” to protect the binding legality of the CJEU. The Polish Prime Minister Mateusz Morawiecki brought the precedent forward in March by demarcating Brussels’ role in the Polish judicial system. The tribunal has further widened the distance between Warsaw and Brussels as the announcement of the primacy of the national constitution over the EU laws has brought forth discussions of “legal Polexit”, a term now used for Poland’s departure from the 27-member state bloc. Clement Beaune, France’s Europe Minister, fears the de-facto exit of Poland from the EU as do many across the continent, thereby, increasing the fear of regional and political instability. The European Commission (EC) has halted funds allocated for Poland’s (and Hungary’s) pandemic recovery spending worth €23 billion in grants and €34 billion in loans primarily due to the Constitutional Tribunal case and Poland’s breach of the rule of law. The Polish government is in dire need of the EU’s money as parliamentary elections are due in 2023 and the ruling government could use the funds to bolster their popularity and improve their coordination with the EU in energy and security affairs. The decision has now alarmed the EU as fears of democratic backsliding would be exacerbated around the region with Hungary and Poland already breaching the rule of law and passing controversial bills to prevent the entry of migrants and curtailing media freedom. The rejection of the primacy of EU laws can now set forth a precedent for other member states calling for the primacy of national laws over supranational laws. In the past, the Supreme Court of Ireland signalled clashes between national and EU laws, but the Irish government reverted to EU laws over the national constitution. Poland’s decision has sent shockwaves across Europe as many fear the worst for the bloc whereas others on the far-right have lauded and embraced Poland’s decision. Arnaud Montebourg, former French Socialist government minister and a presidential candidate, has welcomed Poland’s decision and has demanded France to initiate affirmation of the superiority of French national laws over EU laws. Similarly, Xavier Bertrand, a presidential candidate from Les Républicains, has proposed amendments in the French constitutions to safeguard French interests over European. President Macron, a firm believer in the Eurocentric values and beliefs, faces a major challenge in the upcoming 2022 French Presidential elections as the trust in the EU institutions in France is at an all-time low with only an approval rate of 36 percent. Figure 1: GDP US$ Poland; Witnessing growth since joining the EU in 2004 Source: World Bank Database 2021 Poland cannot be thrown out of the bloc as there is no legal mention of such occurrence, but the EU can decide to impose sanctions if they feel Poland’s actions are unsynchronous with Brussels. However, the decision of the tribunal has reignited the departure of another member state from the bloc after the tiring Brexit saga. The current Polish government led by the Law and Justice Party (PiS) showcase their pro-EU stance and have never mentioned leaving the bloc despite being at odds with EC on major issues such as judicial reforms, media freedom, and LGBTQ rights in addition to gaining constitutional primacy. Prime Minister Morawiecki in his Facebook post cleared the air relating to Polexit as he said, “The entry of Poland and Central European countries into the European Union is one of the highlights of the last decade… Poland’s place is and will be in the European family of nations.” Poland has been a staunch supporter of the EU since the end of the Cold War as more than 80 percent of Poles support EU membership citing economic benefits and political stability. Over 100,000 Poles gathered in Warsaw to protest against the ruling with fear looming large over Polexit. At the rally in Warsaw, former European Council President Donald Tusk called for unity amongst people to ‘defend a European Poland’. The protestors in unison chanted, “We stay” and “We are Europe!” to make their priorities known to the PiS. The EU accounts for 73 percent of the total goods exports and 88 percent of FDI inflows in addition to thousands of Polish migrant workers in other EU countries. Furthermore, the delays in the Next Generation Funds by the EC to Poland would weaken Poland’s FDI inflows in its key sector such as energy and infrastructure as thousands of Poles are employed in the mining industry. Therefore, imagining Polexit would be incomprehensible due to the economic costs and advanced risks of political instability.