Poland throws down gauntlet to EU legal order

Warsaw and Brussels have clashed over the rule of law ever since Poland’s conservative-nationalist Law and Justice party embarked on a series of contested judicial reforms five years ago.

That conflict comes to a head this week in two cases that could challenge the EU’s legal order.

Poland’s constitutional court is set to rule on whether certain provisions of EU treaties are compatible with Poland’s constitution, and whether the EU’s top court can force the country to suspend part of its judicial reforms.

Polish officials insist the cases, to be heard on Tuesday and Wednesday, are necessary because EU bodies have been overstepping their powers.

“This is not only about Poland. The issue is that some European officials are trying to give the EU greater competences without changing the treaties,” said Sebastian Kaleta, Poland’s deputy justice minister. “This is very dangerous, because it will implode the EU from within.”

However, officials in Brussels worry that the real threat to the EU is the questioning of its legal order that is embodied by the Polish cases.

Didier Reynders, the EU’s justice commissioner, told the Financial Times that there was a risk of a “real threat to the very architecture of our union” because of similar legal challenges by member states, including France and Germany.

“If you don’t stop that, you will have more and more possibilities for different member states to challenge the primacy of EU law and the competence of the ECJ,” Reynders said. 

Last month, the European Commission took legal action against Germany’s constitutional court in Karlsruhe over a 2020 ruling that the European Court of Justice had acted beyond its competence in a case relating to European Central Bank bond-buying.

Reynders also wrote to the Polish government formally asking it to withdraw one of the motions before its constitutional court, saying it appeared to contest fundamental principles of EU law and the authority of the ECJ.

The showdown caps years of dispute over Poland’s legal changes. These included an attempt to purge the Supreme Court and the setting up of a new disciplinary chamber with powers to punish judges over various issues, including the content of their rulings. The changes led the European Commission to launch disciplinary proceedings against Poland in 2017, but critics say that it has since done too little to force Warsaw to change tack.

Polish officials dismiss EU criticism of Warsaw as a double standard. “This is not — like some officials in the European Commission are trying to say — a precedent,” said Kaleta, adding that other constitutional tribunals “have said to EU bodies that they are interfering in internal affairs without competence”.

However, Kim Lane Scheppele, a professor of law at Princeton, argued there was a fundamental difference between the Polish challenges and the one launched in Germany. The Karlsruhe court challenged the way the ECJ had done its job in assessing the validity of bond-buying by the ECB; the Polish cases questioned whether EU law applied to Poland.

“The German court just said we need the EU to apply its own law. That is not an anti-rule of law argument. For Poland, the argument is, we have our own rules and we are going to do things our own way,” she said.

Legal experts also argue the Polish cases are part of a battle inside the country, where the government has disregarded its own constitution to overhaul the judicial system, including appointing allies to the constitutional tribunal. 

The European Court of Human Rights ruled in May that one of the constitutional court’s judges had been appointed illegally. Polish officials have said that ECHR criticism was beyond its scope.

“For me [the two cases in Warsaw this week are] simply the political instrumentalisation of the Constitutional Court,” said Marcin Matczak, a lawyer and professor at the University of Warsaw. “First you commandeer it, and then you use it as a political weapon.”

Kaleta said that if the constitutional court ruled that Poland did not have an obligation to follow an ECJ order to suspend part of its judicial reforms, his government would be “obliged” not to do so.

“This will be a signal for [the ECJ] not to act outside the competences it was given, because this breaks the trust between member states, and it’s very dangerous for the EU itself,” he said, adding that any attempt to fine Poland for non-compliance with the ECJ’s decisions would be “illegal”.

However, other observers say that such rulings, if unchallenged, could ultimately pave the way for the disintegration of the EU’s legal order.

“European law is not effective any more if you apply it in one country and not in another. Your legal order has gone,” said Kees Sterk, a senior Dutch judge and a professor at Maastricht University.

It is as if “your house is built on a foundation and now the foundation is being destroyed”, he added. “You don’t notice for the first two years, but suddenly the house collapses. And this is what is happening.”