For years after Poland joined the EU in 2004, the country was the biggest success story of the bloc’s eastern expansion — seemingly set to be a permanent and reliable bulwark of European integration.
But Thursday’s ruling by Polish judges — that parts of EU law are incompatible with the country’s constitution — has sparked fears that a “Polexit”, to follow the UK’s Brexit from the EU, could one day cease to be an idea from political fiction.
Luxembourg’s foreign minister Jean Asselborn warned on Friday that the ruling was “playing with fire”. France’s Europe minister Clément Beaune said it flew in the face of the rules Poland had accepted by joining the bloc, and raised the risk of a “de facto exit”.
“When you sign a contract with someone and say ‘My rule, which I define when I want and how I want, is worth more than what I have signed with you’, there is no more contract,” Beaune said in an interview with BFM TV.
Opinion surveys suggest that more than 80 per cent of Poles want their country to remain in the EU. Poland’s conservative-nationalist Law and Justice party (PiS) insists that the idea that it could take the country out of the union is nonsense.
“The entry of Poland and the countries of central Europe to the EU was one of the most important events of the last decades. Both for us and for the EU itself. We all won from this,” Prime Minister Mateusz Morawiecki wrote on Facebook on Thursday. “That is why I say clearly: the place of Poland is and will be in the European family of nations.”
Yet critics fear that even if PiS does not want to undo Poland’s EU membership, its constant clashes with Brussels could set in train a dynamic that eventually leads that way, much as David Cameron’s attempts to renegotiate Britain’s relationship with the EU paved the way for Brexit.
“Cameron came to the EU . . . with a gun to his head threatening that if he wasn’t granted what he wanted he would shoot himself,” said an official from one EU state. “This is similar: the Poles are threatening to shoot themselves in the foot, if not the head.”
For the EU, which has to balance the need to protect its legal order against the risk of inflaming tensions with Warsaw, deciding how to respond to Thursday’s verdict is a perilously difficult decision.
The European Commission, the EU executive, has faced increased questioning of the primacy of EU law — and the right of the European Court of Justice to have the final word — in a number of member states. But the Polish ruling is more serious given that it explicitly rejects key parts of EU law as incompatible with the country’s constitution in a challenge brought by the country’s own prime minister.
It also follows five years of clashes between Warsaw and Brussels over changes by PiS — including an attempt to purge the supreme court and the introduction of a system allowing judges to be punished for the content of their rulings — which have sparked deep concerns in Brussels that the independence of Poland’s judiciary is being dismantled.
Previous disciplinary proceedings against Poland under the so-called Article 7 process have foundered due to opposition from Warsaw’s key ally Hungary.
Ursula von der Leyen, the commission’s president, has additional means of leverage if she wishes to use them.
The commission is likely to consider as a minimum bringing infringement proceedings over the judgment — although only after it has been published and comes into effect.
The commission is also weighing up a €36bn Polish bid for recovery funding, which Warsaw submitted in May. While Brussels has been seeking to insert “rule of law” conditions into the plan, Thu Nguyen, a policy fellow at the Jacques Delors Centre, said the commission should now reject the Polish plan outright.
The commission is also under pressure to examine powers that would allow it to hold back Poland’s regional development funds under certain circumstances. It has also been considering whether to bring a case against Poland under a new mechanism that allows money to be withheld from member states where there is a clear risk of waste and fraud.
While such a case would not be founded on the tribunal ruling itself, it could politically strengthen the hand of those arguing in favour of deploying the mechanism.
The risk is that withholding billions of euros of EU funding would only embolden anti-Brussels politicians in Poland, worsening the stand-off. But Nguyen said the risks of inaction were worse still.
“This is quite unprecedented — a country so fundamentally rejecting EU law primacy,” she said. “Letting these things slide and doing nothing would risk giving the impression that member states can do what they want. This would mean that we may as well give up on the EU project.”
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