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Polish court rules some EU laws clash with country’s constitution

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Poland’s constitutional court has ruled that some European Union laws are in conflict with Poland’s Constitution.

The Constitutional Tribunal ruled Thursday that some provisions of the EU treaties and some EU court rulings go against Poland’s highest law. Two of the 14 judges who considered the case dissented from the majority opinion.

The decision is expected to define the future of Poland’s already troubled relationship with the 27-member bloc, which has criticised the right-wing Polish government’s attempts to exert more influence over the judiciary.

But the tribunal majority said the country’s EU membership did not give EU courts supreme legal authority and did not mean that Poland had shifted its sovereignty to the EU. They said no state authority in Poland would consent to an outside limitation of its powers.

The ruling followed months of court proceedings in which representatives of Poland’s government, president and parliament argued that Poland’s Constitution comes before EU law and that rulings by the European Court of Justice sometimes conflict with Poland’s legal order.

Representatives of the country’s human rights commissioner argued Thursday before the decision was issued that Poland agreed to respect the EU legal order when it joined the bloc in 2004. They said questioning that order would lower the legal protection standards for people in Poland.

“It’s a confederation of anti-democratic forces against Poland’s membership in the European Union,” Michal Wawrykiewicz, a pro-EU lawyer who is critical of the government, tweeted. He called it a “black day” in Poland’s history.

Poland’s government insists that the justice system and the judiciary are the sole purview of EU member nations and not the EU, and has ignored a number of the EU court’s rulings.

But a deputy foreign minister, Pawel Jablonski, insisted that a ruling giving primacy to Poland’s Constitution would not go against the EU membership treaties. He said that it would instead give them a new definition in a situation where, he said, top courts in many member countries have not followed European Court of Justice’s rulings

The tribunal opened the case in July on a motion from Polish Prime Minister Mateusz Morawiecki. He asked for the review after the EU court ruled that the bloc’s law takes precedence over Poland’s law. The verdict regarded the procedure of judicial appointments under Poland’s current right-wing government.

The European Parliament adopted a resolution last month calling on Morawiecki to cancel the case, stressing the “fundamental nature of primacy of EU law as a cornerstone principle of EU law.”

The Constitutional Tribunal itself is seen by the EU as illegitimate due to the political influence of Poland’s governing party on the appointment of some of its judges. Many of them are government loyalists — including the court’s president, Judge Julia Przylebska, who is heading the panel in the current case.

Warsaw vs Brussels

In Thursday’s ruling, the tribunal said that the constitution is the supreme law in Poland and every international agreement or treaty, being lower in rank, must respect that supreme law. The EU treaties are considered international agreements signed by nation-states.

The Polish tribunal took aim at two specific articles from the EU treaties: article 1, which establishes the existence of the European Union and the conferral of competences from member states, and article 19, which determines the powers of the EU’s Court of Justice, whose mission is to ensure the observance of EU law across the bloc.

The latest escalation comes amid a larger dispute over deep changes the governing Law and Justice party has initiated to the Polish court system – changes the EU views as an erosion of democratic checks and balances.

The main point of contention is a controversial chamber of judges that Poland established with the power to discipline judges and prosecutors for their rulings.

Brussels sees the disciplinary chamber as a threat to the country’s judicial independence that makes judges subject to political control. The Polish government insists it is an essential tool to eliminate the remains of the communist regime.

The EU’s Court of Justice issued in July an injunction to suspend both the chamber and the effects of the decisions it had already taken on the lifting of judicial immunity.

However, the Polish constitutional tribunal rejected the ruling, arguing it was inconsistent with the Polish condition and therefore non-binding.

In response to this, the European Commission sent an ultimatum and gave Poland until 16 August to abide by the Luxembourg ruling and suspend the disciplinary chamber. Otherwise, the executive would request daily penalties – the final and most forceful step of an infringement procedure.

Even though the Polish government sent a reply on 16 August and promised to dismantle the chamber, the Commission was not satisfied and believes the country “has not taken all the measures necessary to fully comply” with the order. The disciplinary chamber continues functioning today, the executive noted.

Consequently, the Commission asked the EU’s Court of Justice to slap Poland with daily financial penalties until the interim measures issued in July are applied. The Luxembourg court is studying the Commission’s request and no fines have been imposed so far.

At the same time, the European Commission is assessing Poland’s €36-billion recovery and resilience plan but doubts remain over its content. Brussels has delayed several times the publication of its assessment and says it’s engaged in dialogue with the Polish authorities to negotiate changes that can guarantee the executive’s green-light.

The Commission is also preparing to activate a never-used mechanism that makes receiving EU funds contingent upon respecting the rule of law. The conditionality scheme, which can suspend EU payments, has to be approved by the EU Council with a qualified majority vote.

It’s still unclear what kind of practical ramifications the Polish ruling will have in practice. The EU has never seen a member state’s judicial system defy so openly the foundations of the bloc.

The EU is, at its core, an entity based on principles of law. Member states agree to confer competences to the union which, in turn, drafts and passes laws that are equally applicable across the bloc. These laws, together with multiple programmes, projects and economic plans, are meant to advance the common interests of all member states.

‘A black scenario in Poland is coming true’

The reading of the Polish verdict coincided with a meeting of interior and justice ministers, attended by Didier Reynders, European Commissioner for justice. Asked about the ruling, Reynders said he needed more time to examine the court’s decision but stressed the primacy of EU law over national law.

The Commissioner also underlined two additional principles: all decisions by the EU’s Court of Justice are binding in all national courts and only the Luxembourg court has jurisdiction to determine if an act from another EU institution breaches EU law. Reynders added the executive intends to act as “guardian of the treaties” and use “all our tools at our disposal”.

The main parties in the European Parliament took to Twitter to condemn the Polish verdict and urged the Commission to freeze payments for the country, which is the largest recipient of EU funds.

“Today’s verdict in Poland cannot remain without consequences. The primacy of EU law must be undisputed. Violating it means challenging one of the founding principles of our Union,” said David Sassoli, the President of the European Parliament.

“By declaring that the EU Treaties are not compatible with Polish law, the illegitimate Constitutional Tribunal in Poland has put the country on the path to Polexit,” said a spokesperson from the centre-right European People’s Party (EPP), the biggest in the hemicycle.

“EU Member States must not stand by idly when the rule of law continues to be dismantled by the Polish Government. Neither can the European Commission. Our money can’t finance the governments which mock and negate our jointly-agreed rules.”

“A black scenario in Poland is coming true! PiS-run Tribunal has disregarded the primacy of EU law, violating EU foundations. Polish judges adjudicating on the basis of EU law can face prosecution,” said the left-wing S&D Group, calling for the opening of new infringement procedure.

“The PiS Government has created a crisis, but it is Polish citizens’ rights that are at risk. Polish citizens are EU citizens and deserve the full protections and rights offered by EU law,” wrote Malik Azmani, first vice-president of the liberal Renew Europe group.

“A Polexit from the EU legal order seems to become unavoidable. It effectively makes cooperation impossible,” added his colleague Sophie in ‘t Veld.

“Today’s ruling will be most painful for Polish citizens. They will have to bear the cost of frozen EU funds,” tweeted Daniel Freund, a German member of the Greens. “This stunt was started by PiS. It is their mess.”

Martin Schirdewan, co-chair of The Left group, lamented the Polish decision and predicted other autocratic governments will demand similar verdicts from their constitutional courts.

Amnesty International said it was “another dark day for justice in Poland”.

The European Conservatives & Reformists (ECR) group, to which PiS belongs, came out in defence of the Polish constitutional court.

“Those calling for Polexit should be reminded that our Union was created by member states to serve them – not the other way around,” the group wrote in response.

“The EU has no legal right to interfere in how judges are appointed in a democratic member state.”

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