Why Poland’s highest court has set it on a collision course with the EU

The highest court in Poland has ruled that some EU laws are incompatible with the nation’s constitution, prompting anger and threats of recriminations in Brussels.

In a move described by the BBC as a “major challenge to the EU’s legal framework”, the Constitutional Tribunal ruled the Polish constitution carried more weight than the EU treaties, meaning continent-wide legislation could not supersede national law.

The legal challenge was brought by Polish Prime Minister Mateusz Morawiecki and it is the first time in the history of the 27-strong bloc that a leader of a member state has questioned wholesale EU treaties in a constitutional court.

The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

Unprecedented challenge

All members of the bloc agree to a treaty that dictates EU law has primacy over national law and that the final arbiter of EU law is the European Court of Justice in Luxembourg.

The agreement means that “where a conflict arises between an aspect of EU law and an aspect of law in an EU country (national law), EU law will prevail”, according to the bloc’s website.

The reason for this agreement is that “if this were not to be the case, EU countries could simply allow their national laws to take precedence over primary or secondary EU legislation”, meaning “the pursuit of EU policies would become unworkable”, the site added.

However, the Polish verdict is a direct challenge to this. The government now insists that the justice system and the judiciary are the sole business of EU member nations and not the EU.

The tribunal said some provisions of EU treaties and EU court rulings clashed with Poland’s highest law, adding that EU institutions often “act beyond the scope of their competences”.

Public opinion

The ruling does not necessarily reflect the public mood about the EU. Surveys show that “more than 80% of Poles back EU membership”, said The Guardian.

But the ruling Law and Justice Party is currently “embroiled in a lengthening and increasingly acrimonious series of disputes” with the bloc, the paper reported. These range from disagreements over “judicial reforms” to battles over a national clampdown on issues from ”media freedoms to LGBT rights”.

While popular opinion in Poland still favours the EU, “many of those sitting on the tribunal are government loyalists, including the court’s president,” said The Telegraph. However, the ruling has drawn a “furious reaction from politicians in Brussels”.

The European Commission immediately said that it “will not hesitate to make use of its powers” to protect the primacy of EU law, accusing Morawiecki of putting the country on the “path to Polexit” and branding the constitutional tribunal “illegitimate”.

‘Polexit’

Some commentators have suggested that the ruling has moved Poland closer to exiting the EU, with The Times saying that it brings a Polexit “one step closer”. And senior diplomatic sources told the paper that the EU would tell Poland that it had to follow European law or leave.

A European ambassador said this tees up a simple scenario: “Poland will have to choose: accept the primacy of the EU under the treaty or leave.”

However, BBC Warsaw correspondent Adam Easton said that there is something else at play in Morawiecki’s decision to pick a fight with the bloc.

As Brussels has yet to approve a €57bn (£48bn) economic recovery plan outlined by the Polish government, he said that the ruling “could be hard ball tactics by Warsaw to get the commission to agree the much-needed funds”. But if that is the case, “it’s a risky ploy”, he added.