On the road to Polexit? Poland pushes back in battle against EU rule

Poland is locked in a legal battle with the European Union over the legitimacy of judicial and constitutional reforms exerted by its conservative ruling party that could trigger the possibility of Poland’s exit from the EU bloc.

Poland's near-ban on abortions triggered months of pro-choice demonstrations before it was made law, such as this one in Warsaw on January 29, 2021.
Poland's near-ban on abortions triggered months of pro-choice demonstrations before it was made law, such as this one in Warsaw on January 29, 2021. © Wojtek Radwanski, AFP

Led by the populist Law and Justice Party (PiS), the Polish government has pushed widespread reforms it says are needed to fight corruption but critics say expand government powers and defy the democratic values upheld by EU law. Poland's abortion rights were overturned with a near-ban introduced in January, despite months of violent street protests, while LGBTQ groups and the freedom of speech of everyday citizens have also come under attack.

But differences between Warsaw and Brussels deepened Wednesday taking a more hostile turn as Poland’s Constitutional Court defied a ruling by the European Union Court of Justice against Poland’s controversial judicial reforms. Poland’s Constitutional Court, the country’s highest court, said the decision was “not in line” with the constitution.

The rift over the legitimacy of EU law first emerged in February 2020 when Poland passed new measures to prevent judges from referring cases to the European Court of Justice. Poland maintains that on domestic affairs to do with its judiciary and courts it is up to Polish authorities and legislation, and not Brussels, to decide.

Wednesday’s ruling was “against interference, usurpation and legal aggression by organs of the European Union”, said Poland Justice Minister Zbigniew Ziobro, who is responsible for the judicial reforms.

The ruling came on the heels of an earlier decision by the EU court to issue an interim order for Poland to put an immediate suspension to the work of Poland’s newly established “disciplinary chamber” -- an offshoot of the Supreme Court set up as part of the government’s vast judicial reforms to discipline judges and prosecutors.

The PiS has been accused of using the disciplinary chamber to either gag judges or go after them for political reasons. One judge is currently facing up to three years prison on a disciplinary charge after incurring the ire of the PiS.

Some EU states, such as Ireland and the Netherlands, have already stopped extraditions to Poland, citing the breakdown of the country’s rule of law. Many legal experts agreed that the decision by Poland’s constitutional court was a deliberate step in undermining the power of EU laws.    

In response to the Polish Constitutional Court’s claim that Polish judges are not EU judges, Alberto Alemanno, an EU law professor stated on Twitter, “Yet that’s exactly what happens in the EU legal order to which Poland belongs...”


A Polexit?

Former EU Council chief Donald Tusk saw the constitutional court’s decision as a tentative tilt towards exiting the EU altogether. Tusk said, “It is not Poland but (ruling party leader Jaroslaw) Kaczynski that is leaving the EU together with his party.”

“Only we Poles can effectively oppose that,” said Tusk, Poland's former prime minister who recently made a political comeback.

Poland's independent human rights ombudsman Adam Bodnar told reporters that Poland was “in the process of a legal Polexit which is taking place step by step”.

Poland joined the EU in 2004, but long-held differences have put Warsaw and Brussels on a collision course a result of the PiS surging ahead with an ever-widening conservative reform agenda.

Like Poland, Hungary has steered away from EU liberalism and excoriated other EU members for interfering in its national affairs. Both countries have clamped down on freedoms of speech at universities, driven out left-wing think tanks and NGOs and kept a tight surveillance over the media and the judiciary while ignoring attempts by the EU to rein in their actions.   

EU defends values

However, the EU was preparing to fight back. On Thursday it launched legal action against Poland and Hungary for violations of fundamental rights concerning LGBTQ rights. In relation to Poland, the EU Commission has accused Polish authorities of failing to “fully and appropriately respond to its inquiry regarding the nature and impact of the so-called ‘LGBTQ-ideology free zones' resolutions” which were adopted by several Polish regions. The EU procedures against Hungary relate to a June “anti-paedophilia” law that bans or limits LGBTQ content for under 18 year-olds.  

FRANCE 24’s Brussels correspondent Dave Keating said that neither country was showing signs it would back down and it was likely the matter would go to the courts, though the EU Commission’s “legal grounds were shaky, especially against Poland”.

“It could be that this will be decided on some technical single-EU market rules rather than on fundamental rights violations,” Keating said of the infringements.

Some legal observers warned that any attempt to fine some member states and not others for non-compliance with decisions made by the European Court of Justice would be illegal and further rupture trust within the bloc. On the other hand, if unchallenged, it might lead to an unravelling of EU law.

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

The Polish government may well be emboldened by those states that have and continue to test the boundaries of EU law and the values upon which those laws are based. A Polexit, in this context, may not be so far-fetched, even though surveys show most Poles value remaining in the EU. Polish nationalists might even suggest the precedent set by Brexit lends legitimacy to their own claims for constitutional sovereignty.

However, the EU will not so easily give in to breaches on rights and values. And, as Brexit showed, an exit is unlikely without further dust-ups and a ratcheting of hostilities with the EU.

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