Its conservative ruling party is waging a legal battle with the European Union over the legitimacy of judicial and constitutional reforms that could trigger Poland’s exit from the EU. The Polish government, led by the populist Law and Justice Party (PiS), is enforcing extensive reforms it says will combat corruption; however, critics say they will expand government power and violate democratic values. Poland overturned its abortion rights with a near-ban introduced in January, despite months of violent street protests. LGBTQ rights and freedom of speech are also under attack.
Despite this, differences between Warsaw and Brussels widened on Wednesday as the European Court of Justice ruled in Poland’s favor against controversial judicial reforms. Poland’s highest court, the Constitutional Court, said the decision violated the constitution. A rift over the legitimacy of EU law first emerged in February 2020, when Poland enacted new measures prohibiting judges from referring cases to the European Court of Justice. It is up to Polish authorities and legislation to decide on domestic matters concerning its judiciary and courts, not Brussels.
According to Poland Justice Minister Zbigniew Ziobro, who oversees judicial reforms, Wednesday’s ruling targets ‘interference, usurpation and legal aggression’ by EU institutions. Poland was recently ordered by the EU Court to suspend the work of its newly created ‘disciplinary chamber’ as part of the government’s judicial reforms. Several reports allege the PiS uses the disciplinary chamber to intimidate or punish judges for political reasons. A judge is currently facing up to three years in prison after incurring the ire of the PiS.
Ireland and the Netherlands have already halted extraditions to Poland, citing a lack of rule of law in the country. Legal experts agreed that Poland’s constitutional court’s decision undermined the power of EU laws with deliberate intent. According to Alberto Alemanno, an EU law professor, Polish judges do not have EU status, although they do in the EU legal order to which Poland belongs. Former EU Council leader Donald Tusk saw the constitutional court’s decision as a tentative step toward leaving the EU. Tusk said, ‘It is not Poland but (ruling party leader Jaroslaw Kaczynski) who is leaving the EU along with his party. Only Poles can effectively oppose that,’ said Tusk, Poland’s former prime minister who has recently returned to politics.
Adam Bodnar, Poland’s independent human rights ombudsman, told reporters that Poland was ‘in the process of a legal Polexit, which is unfolding step by step’. While Poland joined the EU in 2004, long-standing differences have led to a collision between Warsaw and Brussels due to the PiS’s ever-growing conservative reform agenda. Hungary has also turned away from EU liberalism and excoriated other EU members for interfering in its national affairs. The two countries have suppressed free speech at universities, evicted left-wing think tanks and NGOs and maintained tight controls over the media and judiciary while ignoring attempts by the EU to rein in their actions.
In response, the EU prepared a counterattack. It took legal action against Poland and Hungary for violating fundamental rights relating to LGBTQ rights on Thursday. According to the EU Commission, Poland failed to respond ‘fully and appropriately’ to its inquiry regarding the so-called ‘LGBTQ-free zones’ that were adopted by several Polish regions. According to EU procedures, Hungary has violated an anti-pedophilia law passed in June by banning or limiting homosexual content for children under 18. France 24’s Brussels correspondent Dave Keating said that neither country was showing any signs of backing down and that it was likely the matter would go to court, although the EU Commission’s ‘legal grounds were shaky, especially against Poland’.
As for the infringements, Keating said that they might be decided based on technical EU market rules rather than fundamental rights violations. Some legal observers have warned that any attempt to penalize some members of the EU and not others for not complying with court decisions would be illegal and further undermine trust within the EU. On the other hand, if left unchallenged, it could unravel EU law.
If European law is applied only in one country, it is no longer effective. ‘Your legal order has been revoked,’ Kees Sterk, a senior Dutch judge and professor at Maastricht University, told the Financial Times. Poland may be emboldened by those states that have and continue to test the boundaries of EU law and the values upon which these laws are based. As such, a Polexit may not be that far-fetched, even though surveys show that most Poles value remaining in the EU.
Polish nationalists may even argue that Brexit serves as a precedent for their own claims to constitutional sovereignty. EU rules and values cannot be easily violated, however. Brexit showed that an exit is unlikely without more dust-ups and escalating hostilities with the EU.