Written by: Aleksander Cwalina
Brussels and Warsaw are locked in a judicial tit-for-tat to decide who has the final say on the supremacy of European Union (EU) law. This has strained EU-Polish relations and prompted some to wonder if “Polexit” lurks in the near future.
The spar over rule of law in Poland began with controversial judicial reforms five years ago that allowed the president to personally grant term extensions to judges, allowed for parliamentary control over the appointment board, and created a mechanism to investigate and sanction judges for their rulings. These reforms have all come under scrutiny by the European Court of Justice (ECJ), the EU’s supreme court tasked with uniform application of EU law, for limiting the neutrality of the judiciary.
In 2019, the ruling Law and Justice (PiS) party further extended the Polish judicial reform to include a law that prevented Polish courts from referring cases to the ECJ and created a disciplinary chamber for judges in Poland’s supreme court. The disciplinary chamber gives the ruling government the ability to punish judges through fines, salary reductions, or by sacking them entirely. The bill, according to PiS, is meant to fight corruption and the personal political activity of judges, but it has come under fire by the ECJ for limiting the impartiality of the judicial branch, as the bill would allow the government to fire judges who might rule against the party’s interest.
The bill has further deepened the divide between Brussels and Warsaw and prompted the ECJ on October 27 to issue the highest daily fine in the EU (€1m) to pressure a reversal of the judicial policy.
Before the ruling, Poland’s prime minister Mateusz Morawiecki accused the EU of making demands of Poland with a “gun to [their] head,” charging the executive branch of the EU, the European Commission (EC), with “[starting] the third world war” by withholding funds in response to the ongoing judicial crisis. The inflammatory language came as a result of the EC threatening to implement sanctions or reduce/withhold Poland’s Cohesion Fund money.
Poland is the EU’s largest Cohesion Fund recipient, receiving €105.8bn between 2014 and 2020. The Fund provides support to EU member states with a gross national income below that of the EU average and aims to strengthen the economic, infrastructural, and political cohesion of the European Union. Most of the funds translate to the development of railways, green transport, digitization, and business development.
In addition to threatening to withhold Polish Cohesion funds, the EC has also stalled in approving €24bn in EU grants and another €12bn in loans to support Poland’s national COVID-19 recovery plan. Poland’s reluctance to recognize the primacy of EU law remains a sore point in negotiations.
In response to the threat of sanctions from Brussels, Warsaw has doubled down by refusing to roll back the controversial judicial law as well as blocking climate talks until both cohesion and recovery funds are guaranteed. Since the most consequential reforms in the EU require unanimous consent from the member states, a “rogue” state such as Poland can pose a challenge to the everyday operations of the EU.
This challenge is not unprecedented in EU history, however. Earlier this year, the German constitutional court ruled to delay a European Central Bank bond-buying program, stating the ECJ had ruled beyond its scope to approve the bond-buying and that it must first prove that the purchases of bonds were justified.
The constitution of Germany, the Basic Law, is written with the cession of sovereign powers and respect to the European Union specifically delineated in Articles 23-24. This raises the question: if a country with decades of bedrock support for the EU starts to challenge the primacy of its highest court, what is stopping other member states, such as Poland, from further challenging the supremacy of the EU and its institutions?
Both Poland and Hungary, countries ruled by nationalist conservative majorities in democratic backslide, represent a challenge to the structure and supranational nature of the European Union. Recent actions by both countries represent a trend of populist and nationalist governments attempting to reassert their sovereignty within the EU.
Brexit is a poignant extreme of this trend, prompting some to wonder if the end goal of Poland and other nations like it is to leave the European Union entirely. Though it would seem that Poland is doing everything in its power to either leave or be kicked out of the EU, I would argue that this only represents a desire to renegotiate the competencies of the EU.
Poland has been held up as a success story of the EU, transitioning from a Soviet command economy to a booming central European market. Poland joined the EU as part of the 2004 eastern enlargement that included the accession of 10 member states, mostly from the former Eastern Bloc. These nations have enjoyed the economic benefits of free movement of people and goods across the continent and have developed to become important members of the EU.
However, growing pains accompanied the 10-country enlargement to the now 27-state-strong European Union. The establishment of the Eurozone, the 2014 migrant crisis, and now the COVID-19 pandemic have made critics of the federal integration of the EU fear that their state’s sovereignty is being sacrificed for an incompetent bureaucracy in Brussels. This has led to the rise of eurosceptic nationalist parties such as PiS in Poland, UKIP in the United Kingdom, and Fidesz in Hungary, who promise to put their country first and resist further federalism within and throughout the European Union.
One of the main issues with curbing this antifederalist sentiment is that the EU has few mechanisms to discipline rogue member states. Withholding funds is divisive, and more severe measures like suspending rights from a member state (as outlined in Article 7 of the Treaty of the European Union) require a unanimous vote. In the past five years, Hungary and Poland have been using this mechanism to block EU sanctions against each other.
Despite PiS posturing to leave the EU, Poland has few incentives to leave wholesale. For one, the fear of Polexit in the wake of Polish supreme court rulings against EU laws sparked nationwide pro-EU protests, indicating a strong backing for remaining among Poles. The nation also benefits greatly from its economic connection with the EU and from close partnerships with other member states through reputable, strong institutions. Poland, Morawiecki, and PiS do not want to wholly abandon these benefits, but rather wish to avoid the burden of costs and responsibilities that come with EU cohesion. Essentially – they want all the good but none of the bad or cumbersome.
Regardless of the reasoning behind Poland’s actions, a European Union without cohesion is a Union in name only. Poland and other nations like it pose a structural and fundamental threat to the supranational nature of the EU, halting future federalist endeavors or even everyday proceedings. It is in the best interest of the EU to approach this in a careful, but decisive manner if it hopes to continue as a unified European project.