The Polish problem: of courts and constitutions

Ross Hyde

Polish flag, image by kaboompics via Pexels

On October 21st and 22nd, the European Union (EU) held a summit spanning Saturday and Sunday in the Council of Europe’s imposing buildings with a list of preselected topics that were widely expected to be discussed. However, there was a notable additional topic present that has been a thorn in the EU’s side for several years now; Poland’s increasing reluctance to abide by certain EU conventions and institutions. It has exposed weaknesses in the EU’s capabilities to enforce its laws and practises on member states, and suggests that trusting in democratic systems and respecting national sovereignty would be the best way for the EU to avoid discussing more such ‘additional topics’ at future summits.

The latest quarrel that the EU had with Poland surrounds the ruling of the highest court in Poland, the Polish Constitutional Tribunal, on October 7th. The Tribunal declared incompatible with the Polish Constitution Article 1 and Article 19 of the Treaty of the European Union, referring respectively to the concept of “ever closer union amongst the peoples of Europe” and “the interpretation and application of the treaties” of the EU. This stands in contrast to what many would consider to be a core principle of the EU; that EU law has primacy over national legislation. In the words of European Commission President Ursula von der Leyen, the ruling constitutes a “direct challenge to the unity of the European legal order”. To increase the controversy further, the original challenge in the Tribunal was brought by Polish Prime Minister Mateusz Morawiecki, the first time that a leader of an EU member state has questioned an EU Treaty in a national court.

The principle of the primacy of EU law over domestic legislation has curious origins. Such a principle was not, as might be expected, contained in the 1957 Treaty of Rome, the founding document of the European Economic Commission (EEC). Instead, in a manner remarkably similar to the 1803 US Supreme Court case Marbury v Madison, where the Court gave itself the power of judicial review, the European Court of Justice (ECJ) largely instated the principle of the primacy of EU law itself. In the 1964 case of Costa v ENEL, a seemingly unwinnable case against the Italian government’s nationalisation of electricity companies in the Italian Constitutional Court, found itself in the ECJ over claims that the law impacted the viability of the EEC’s single market.

In the landmark decision that followed, the ECJ asserted - amongst other things - that the Community legal order had become an “integral part” of national legal systems, that domestic courts were “bound to apply” Community norms and that it was “impossible” for member states’ organs to accord precedence to domestic measures over Community law, as that would jeopardise the “legal basis” and the very “character” of the EEC. This watershed ruling was then upheld by EU member states, and by the time Poland joined in 2004, it would have been well aware of the 40-year-old convention. 

The political circumstances in Poland surrounding the Tribunal’s ruling against this convention are far from transparent. The Tribunal ruling was issued by a panel of judges appointed in a murky manner by PiS (Law and Order). The same Tribunal - with politically unbiased judges - had previously declared Articles 1 and 19 of the Treaty to be compatible with the Polish Constitution in a 2005 ruling. However, from a legal point of view, the primacy of EU law was one which member states ever explicitly signed up to in a treaty or conference, and therefore following the principle was never made a condition of entry to the EU. Indeed, Poland is far from the first country to challenge EU law and institutions. The UK had a long-running dispute with the EU and the ECHR over its refusal to grant prisoner voting rights, and the German Constitutional Court questioned the legality of the EU’s Covid-response orientated quantitative easing programme. According to a study by researcher Olof Larsson, there are at least ten major cases of member states changing EU law either through changing the founding treaties or through EU directives, many of which have helped the EU to evolve. 

Tensions between Poland and the EU have greatly increased since the start of 2020. The EU has protested against a February 2020 judiciary law that prevents Polish judges from referring matters to the ECJ, established a Disciplinary Chamber containing many open PiS supporters with powers to oversee Polish Supreme Court judges, and created a national body to rule on Polish judges’ independence. In July 2021 the ECJ ordered the Polish government to suspend the Disciplinary Chamber, and on October 27th it ordered Poland to pay €1m for every day it did not suspend the Chamber. The EU has also objected to a Tribunal ruling on abortion from October 2020 which declared a Polish law authorising abortions for malformed foetuses unconstitutional, and made Poland one of the most restrictive countries on abortion in the Western world. Without doubt, both laws have debatable consequences for key features in a democracy, such as judicial independence and individual rights. 

Nonetheless, overreach by the EU and its organs in the past - perceived or real - has only held detrimental consequences for itself, recently manifested by the Brexit vote of 2016 and the rise of anti-EU populism in 2016-7. The EU should see its problem as with PiS, not with the Republic of Poland, as it is highly unlikely that Poland will leave the EU. There is no motivation on either Poland’s side to leave the EU, nor on the EU’s side to kick Poland out, not least due to a lack of will to do the former and a lack of will and mechanism to do the latter. The Polish government needs EU money to fulfil expensive schemes before the fast-approaching 2023 parliamentary elections. Civic Platform, a pro-EU party with experience of governing, may well win. The Polish people’s patience with PiS is fast waning; mass protests are increasingly common, and a poll conducted shortly before the ECJ’s October 27th ruling stated that 73.3% of Poles wanted their government to either back down or compromise with the EU. Whilst conducted in a shady manner by PiS, Poland does have legal grounding for its Tribunal’s ruling. However well intentioned the ECJ’s actions against Poland might be, the EU would do best to let Poland battle this out internally.

Sources: 

1. https://academic.oup.com/ejil/article/30/3/1017/5673326#189985579  (background on the Costa v ENEL case, origin of ECJ legitimacy)
   
2. https://epthinktank.eu/2021/10/21/outlook-for-the-european-council-meeting-of-21-22-october-2021/ (information on what was formally on the EU summit’s agenda)
   
3. https://www.politico.eu/article/poland-court-eu-legal-supremacy/ (origin of ECJ legitimacy)
   
4. https://blogs.lse.ac.uk/europpblog/2020/10/09/can-member-states-override-the-court-of-justice-of-the-eu/ (Olof Larsson study on member states’ override of EU law)
   
5. https://europeanlawblog.eu/2021/10/21/polands-constitutional-tribunal-on-the-status-of-eu-law-the-polish-government-got-all-the-answers-it-needed-from-a-court-it-controls/ (political circumstances in Poland surrounding the Tribunal ruling)
   
6. http://www.proyectos.cchs.csic.es/euroconstitution/library/documents/Polish%20Constitutional%20Tribunal_Judgment%20Polands%20accession%20to%20the%20EU.pdf (2005 Polish Constitutional Tribunal ruling declaring constitutional Poland’s ascension to the EU)
   
7. https://www.euronews.com/2021/10/20/polish-row-over-eu-law-and-soaring-energy-prices-to-take-centre-stage-during-european-summ (details of Polish Constitutional Tribunal ruling, Ursula von der Leyen reaction to Tribunal ruling)
   
8. https://www.theguardian.com/world/2021/mar/31/eu-takes-poland-to-court-over-law-that-undermines-judges (details on Poland’s Feb 2020 judiciary law, and European Commission reaction to it)
   
9. https://www.reuters.com/article/us-poland-abortion-europe-idUSKBN2861ZU (details on Poland’s October 2020 abortion law, and how the European Parliament reacted to it)
   
10. https://www.bbc.co.uk/news/world-europe-59064883 (latest ECJ ruling on 27 Oct, Polish opinion poll)
    

  11. https://notesfrompoland.com/2021/08/17/polish-government-announces-new-child-benefits-for-families-to-create-the-future-of-our-nation/  (Family Welfare Capital scheme)