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Poland rejects primacy of EU law, deepening feud with bloc
Rule of law

Poland rejects primacy of EU law, deepening feud with bloc

3 min. 07.10.2021
Warsaw-based tribunal ruled that “the Republic of Poland can’t function as a sovereign and democratic state” if it allows EU to influence spheres where it has not deferred powers
Poland's Prime Minister Mateusz Morawiecki, whose government has been embroiled in a row with the EU over several issues including anti-LGBTQ policies
Poland's Prime Minister Mateusz Morawiecki, whose government has been embroiled in a row with the EU over several issues including anti-LGBTQ policies
Photo credit: AFP

Poland’s top court ruled that the constitution overrides some European Union laws, intensifying a conflict over democratic standards that could sink billions of euros in pandemic aid and even challenge the country’s membership in the bloc.

The judgment could be used by Poland’s government to bypass common rules that underpin the functioning of the 27-nation bloc and follows years of increasingly bitter disputes over the independence of courts, media freedom and LGBTQ rights.

The Warsaw-based tribunal ruled that “the Republic of Poland can’t function as a sovereign and democratic state” if it allows the EU to influence spheres where it has not deferred powers to the bloc. 

The government applauded the verdict, saying it makes clear that the EU cannot interfere in the country’s judicial system. 

“It should be clearly emphasised that Poland respects the applicable norms of EU law to the extent that they have been established” in EU treaties, government spokesman Piotr Muller said. 

The verdict is set to complicate Poland’s efforts to unlock 36 billion euros in funds from the EU’s stimulus program after Paolo Gentiloni, commissioner for economic and financial affairs, signalled that questioning the primacy of EU laws can delay the approval process.

Prime Minister Mateusz Morawiecki had submitted the case to the tribunal, hoping that a ruling rejecting the primacy of EU law will help him refute lawsuits over Poland’s alleged erosion of democratic standards. 

He sought to play down the risk of Poland losing funding this week, saying the EU’s largest eastern economy would ride out any loss of the pandemic aid because its finances are in good shape. Talks on accessing EU funds can take more weeks or months, he added.

Primacy Challenge

The response from Poland’s EU partners was swift. Jeroen Lenaers, justice and home affairs spokesman for the European People’s Party, the largest group in the European Parliament, said the ruling drew a question mark over Poland’s membership in the bloc.

“The Polish government has lost its credibility,” Lenaers said. “This is an attack on the EU as a whole.”

The challenge from Poland adds fuel to a debate over the primacy of the bloc’s law, following a landmark decision by Germany’s top court last year that accused judges at the bloc’s top tribunal of having overstepped their powers when they backed the European Central Bank’s quantitative easing policy.

The European Commission in June started an infringement case against Germany, saying its Constitutional Court had set “a serious precedent, both for the future practice” of that court “and for the supreme and constitutional courts and tribunals of other member states.”

While the German case pertains solely to buying debt, the concern is that Poland can use Thursday’s judgment to ignore any EU rules it does not want to comply with.

The Warsaw-based tribunal, which has been stacked with justices appointed by the ruling party, already ruled in July that Poland does not need to abide by EU court interim orders regarding its judiciary reforms.

“Poland just took a legal step toward the abyss of ‘legal Polexit’", said Jakub Jaraczewski, a lawyer and research coordinator at Democracy Reporting International think-tank in Berlin.

The EU Court of Justice ruled that Poland’s regime for disciplining judges could be used to exert political control over decisions and must be immediately suspended. The court upped the ante on Wednesday by rejecting a Polish request to revoke the order.

The government said it will revamp the so-called Disciplinary Chamber but has yet to present the details of the plan. 

©2021 Bloomberg L.P.


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