Wednesday, October 27

The consequences of the Polish Constitutional ruling: can Poland leave the EU?

If one signs to comply with some rules to enter a club and, when he is inside, says that the rules do not concern him, what alternatives are there? Either you decide to comply with them, even if you don’t like them, or you leave. In this situation, the Constitutional Court of a country, Poland, has been placed, whose judicial system questions the European Commission itself and the European Justice for their lack of independence.

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Thus, a Constitutional whose independence from the Executive power is in question has decided that the European Justice does not have powers to judge the Polish judicial system. In other words, European laws are not above state laws; In other words, the Court of Justice of the European Union is not above the Polish judicial system. In other words, Poland says that the EU rules are unconstitutional and therefore should not be followed. Thus, it stands on the edge of Polexit.

Thus, in a court ruling, Polish judges have removed Poland from the EU legal order, leaving the country in an alley with very few exits.

Do you mean that Poland is no longer in the EU?

No. Poland has risen within the EU and will lie within the EU. But it has become a foreign body in a singular ecosystem, in which the mechanism to leave the EU is foreseen – Article 50 that the United Kingdom activated with Brexit – but the mechanism to expel anyone from the club is not foreseen. .

Of course, life can be very difficult inside.

How can Poland be pressured?

There are several ways. The first is the economic one, and the European Commission has already explored it: Poland has blocked European recovery funds –23.9 billion euros– and cohesion funds in Brussels due to the crusade of its Government –commanded by Law and Justice (PiS) , Vox’s main European ally – against LGTBI groups and judicial independence.

“I have to read the decision before analyzing all the details,” said the European Commissioner for Justice, Didier Reynders, after hearing the sentence. “It is a situation that worries us. I have already said it in recent months: there are a series of EU principles, which are at the creative core of the EU, such as the CJEU rulings, binding on all, that Community law prevails on national law. So all this must be taken into account and we will continue to use all the instruments at our disposal so that all this is respected. We want to be firm and use everything we have at hand to protect our principles, because they are the founding core of the EU. We are discussing European funds and we are going to continue with the conditionality process. I want to make it clear that we do not want to deviate at all from these principles. ”

Reynders added: “These principles are the founding core of the Union.” In other words, economic and judicial pressure.

The Community Executive took a further step a month ago as the Polish Government continues its assault on the country’s judiciary and its defiance of the pre-eminence of community legislation over state law, and asked the Court of Justice of the EU to impose economic sanctions on Poland to ensure compliance with the Court’s injunction order, which referred to the functioning of the Disciplinary Chamber of the Polish Supreme Court, and the suspension of other provisions of Polish law affecting judicial independence.

If Brussels keeps the tap on all funds closed, including Multiannual Financial Framework programs (MFF, EU budget for 2021-2026), Poland will suffer.

In parallel, Poland has a procedure open – Article 7 – for violations of the rule of law and the values ​​of the EU that could lead to it losing its vote in the Council – meetings of the governments of the 27 members of the EU. But for that to happen, it takes unanimity from the other 26, something unlikely while the Hungarian Víktor Orban or the Czech Andrej Babis, for example, are in the room.

And if Poland loses the funds and loses the vote, it loses many of the benefits of being part of the EU, especially if we take into account that the Council often works unanimously, and the Polish vote, for example, was always a brake for one of the high priorities of the EU, such as the ecological transition.

What can the Polish government do?

For now, he has concluded the sentence. Not in vain, he endorses the theses of the Conservative Executive of PiS. But it puts you in front of several options, none of them easy.

The first, if the Constitutional Court says that some parts of the EU Treaty are unconstitutional, the Constitution could be changed so that they would enter it. The problem is that, while recourse to the Constitutional was exercised by the Government, it would be difficult for that same Government to encourage a constitutional change to contradict itself. But it is an option.

Another option is to ask for a change in the Treaties to make them compatible with the Polish Constitution, something that seems impossible.

A third possibility would be to say: as the Constitutional law says that the Treaties are unconstitutional and will not be fulfilled, Poland is leaving the EU. But this raises a lot of problems: it would require a referendum, which it is unclear whether the PiS can win, and it would leave Poland outside the EU umbrella and closer to the shadow of Moscow, something the PiS deeply fears, via Belarus.


Negotiate. If it is not broken, if the 26 cannot simply throw Poland out and Poland does not activate Article 50 to make its Polexit, It only remains to find a way through negotiation. For example, to find a way to comply with the CJEU without angering the Polish Constitutional; for example, that Brussels be appeased by undoing judicial reforms.

But the pressure is going to be great. Because if the Polish Constitutional ruling is contagious, the European Union explodes. There was already a threat with the rulings of the German Constitutional in relation to debt purchases by the European Central Bank. But as much as the Karlsruhe rulings irritate by their defiance of European law, no one in Brussels doubts the independence of the German judges. In the same way, nobody doubts in Brussels about the little independence of the Polish judges.

And the other possibility: to allow time for the next Polish legislative elections, scheduled for 2023, to be a change of forces in Poland that will throw a new majority with another political course.

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