On the way to Polexit? Poland pushes back against EU rule

Poland is engaged in a legal battle with the European Union over the legitimacy of the judicial and constitutional reforms implemented by its conservative ruling party that could raise the possibility of Poland’s exit from the EU bloc.

Led by the populist Law and Justice Party (PiS), Poland’s government has implemented widespread reforms it believes are necessary to fight corruption, but critics say it will expand government powers and respect democratic values ​​that are respected by EU law. , are defied. Poland’s abortion rights were quashed with a near-ban introduced in January, despite months of violent street protests, while LGBTQ groups and ordinary citizens’ freedom of expression also came under fire.

But disagreements between Warsaw and Brussels intensified on Wednesday and took a more hostile turn when Poland’s Constitutional Court defied a ruling by the European Union Court of Justice against Poland’s controversial judicial reforms. Poland’s Constitutional Court, the country’s highest court, said the decision was “not in line” with the constitution.

The divide over the legitimacy of EU law first arose in February 2020 when Poland adopted new measures to prevent judges from referring cases to the European Court of Justice. Poland argues that on internal matters related to its judiciary and courts, it is up to the Polish authorities and law, not Brussels, to decide.

Wednesday’s ruling was “against interference, usurpation and legal aggression by European Union bodies,” said Polish Justice Minister Zbigniew Ziobro, who is responsible for judicial reform.

The ruling came on the heels of an earlier decision by the EU court to give Poland a preliminary injunction to stop the work of Poland’s newly created “disciplinary chamber” – an offshoot of the Supreme Court created as part of the massive judicial government reforms to discipline judges and prosecutors.

The PiS has been accused of using the Disciplinary Chamber to silence judges or go after them for political reasons. One judge is currently facing a disciplinary charge of up to three years in prison after taking the ire of the PiS.

Some EU countries, such as Ireland and the Netherlands, have already halted extraditions to Poland, citing the collapse of the country’s rule of law. Many legal experts agreed that the Polish Constitutional Court’s decision was a deliberate step in undermining the power of EU laws.

Responding to the Polish Constitutional Court’s claim that Polish judges are not EU judges, Alberto Alemanno, an EU law professor, stated on Twitter: “Yet that is exactly what is happening in the EU legal order to which Poland belongs.. .”

Poland’s ‘unconstitutional’ Court just stated:

“Polish judges do not become EU judges by applying EU law”

Yet that is exactly what is happening in the EU legal order to which #Poland belongs (at its own discretion) #rulesoflaw

— Alberto Alemanno (@alemannoEU) July 14, 2021

A polemic?

Former EU Council President Donald Tusk saw the Constitutional Court’s decision as a cautious move to leave the EU altogether. Tusk said: “It is not Poland, but (ruling party leader Jaroslaw) Kaczynski who is leaving the EU with his party.”

“Only we Poles can be effective against that,” said Tusk, the former prime minister of Poland who recently made a political comeback.

Poland’s independent human rights ombudsman Adam Bodnar told reporters that Poland is “in the process of a legal Poleexit taking place step by step”.

Poland joined the EU in 2004, but long-held disagreements have put Warsaw and Brussels on a collision course as the PiS moved forward with an ever-broadening conservative reform agenda.

Like Poland, Hungary has steered clear of EU liberalism and denounced other EU members for meddling in its national affairs. Both countries have curtailed freedom of expression in universities, expelled left-wing think tanks and NGOs and closely monitored the media and the judiciary while ignoring EU efforts to rein in their actions.

EU defends values

However, the EU was preparing to fight back. On Thursday, it launched legal action against Poland and Hungary for fundamental rights violations related to LGBTQ rights. With regard to Poland, the EU commission has accused the Polish authorities of failing to respond fully and adequately to its investigation into the nature and impact of the so-called ‘LGBTQ ideology free zones’ resolutions adopted by several Polish regions. EU proceedings against Hungary relate to an “anti-pedophilia” law in June that bans or restricts LGBTQ content for under 18s.

Dave Keating, Jowharcorrespondent in Brussels, said neither country showed signs of pulling out and the case would likely go to trial, although the “EU commission’s legal grounds were shaky, especially against Poland” .

“It may be that this will be decided on the basis of some technical rules for the EU internal market rather than fundamental rights violations,” Keating said of the breaches.

Some legal observers warned that any attempt to fine some member states and not others for failing to comply with European Court of Justice decisions would be illegal and further damage confidence within the bloc. On the other hand, if left unchallenged, it could lead to an unraveling of EU law.

“European law is no longer effective if you apply it in one country and not in another. Your legal order has disappeared,” Kees Sterk, senior Dutch judge and professor at Maastricht University, told the Financial Times.

The Polish government may well be encouraged by those states that have and continue to test the limits of EU law and the values ​​on which those laws are based. A Polexit may not be that far-fetched in this context, even though studies show that most Poles value staying in the EU. Polish nationalists might even suggest that the precedent set by Brexit lends legitimacy to their own claims to constitutional sovereignty.

However, the EU will not readily give in to violations of rights and values. And, as Brexit showed, an exit is unlikely without further uproar and a flare-up of hostilities with the EU.

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