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Court ruling puts Poland on a collision course with the EU’s legal order

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Warsaw’s long-running confrontation with Brussels took a dramatic turn for the worse on Thursday when Poland’s Constitutional Tribunal ruled that the country’s constitution takes precedence over some EU laws.

“The effort by the Court of Justice of the European Union to interfere in the Polish justice system violates the principle of rule of law, the principle of the primacy of the Polish constitution as well as the principle of retaining sovereignty in the process of European integration,” the tribunal ruled.

The tribunal, seen as being under the control of the ruling Law and Justice party and staffed with several judges appointed in violation of the Polish constitution, was ruling on a question submitted by Prime Minister Mateusz Morawiecki on whether the Court of Justice of the EU is going too far in its rulings on Poland’s judicial system and exceeds its competences under the European Treaties.

The CJEU has been very critical of a new disciplinary body in the Polish Supreme Court, and ruled earlier this year that the way judges are appointed may infringe upon EU law. On Wednesday, it found that transfers of judges to new posts against their will are “potentially capable of undermining the principles of the irremovability of judges and judicial independence.” 

Thursday’s Constitutional Tribunal ruling, issued after months of delays and postponements, is an effort by Poland to rule out such verdicts from the Luxembourg court.

It escalates the battle between the EU and Poland over the government’s radical justice system reforms, which critics say aim to bring the courts under tighter political control. The government argues the changes are needed to root out the remnants of communist influence on the courts.

Piotr Müller, the government spokesperson, said Thursday’s ruling backs Morawiecki’s motion. “The supremacy of constitutional law above other legal systems stems literally from the Polish constitution,” he said. 

“Poland … respects the applicable norms of EU law to the extent that they have been established in areas explicitly and expressly provided for in EU treaties,” he added.

The decision only becomes legal once published by the government, which in the past has delayed enacting difficult verdicts.

Critics warned that the decision will worsen already fraught relations between Warsaw and Brussels.

“Poland has taken a step towards the abyss of ‘legal Polexit,’” said Jakub Jaraczewski, research coordinator at Democracy Reporting International. “What will likely follow is a sharp reaction from CJEU seeking to protect EU legal order against a ‘rogue’ member state — for example, by declaring Poland exempt from judicial cooperation mechanisms such as European Arrest Warrant.”

Terry Reintke, a German member of the European Parliament who is the Greens shadow rapporteur on Poland, said the ruling “flies in the face of what the Polish government has signed up to as a member of the European Union” and called it “another example of the government’s attempts to undermine the rule of law.”

Jeroen Lenaers, spokesperson for the European People’s Party grouping on the Justice and Home Affairs Committee, said the ruling undermines claims by Poland’s government that it has no plans to quit the EU. “The Polish Government has lost its credibility. This is an attack on the EU as a whole,” he said in a statement..

The European Commission did not have an immediate comment after the ruling. The Polish case has alarmed the Commission, which insists on the supremacy of EU law over national constitutions.

The Commission has made clear that Poland’s pandemic recovery spending program — worth €24 billion in grants and €12 billion in loans — hasn’t yet been approved because of the Constitutional Tribunal case. A senior EU official said it was uncertain what the ruling means for Poland’s funds.

“I don’t see how the Commission and a qualified majority of member states can greenlight the Polish plan to get recovery instrument money as long as this ruling stands. My sense is: This will backfire big time,” tweeted Lucas Guttenberg, deputy director of the Delors Centre in Berlin, a think tank.

Paola Tamma contributed reporting.

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