Poland ‘on path to Polexit’ after judges rule national laws supersede EU

Poland's future in the European Union was thrown into doubt on Thursday after judges ruled that Polish law superseded EU law in the latest clash between Warsaw and Brussels.

Jaroslaw Kaczynski, the leader of Law and Justice, the dominant party in Poland's governing coalition, said a different ruling would mean that "Poland is not a sovereign state".

Watch: Polexit? Fury in Brussels after Warsaw court rules Polish Constitution overrides EU law

He added that when it came to the administration of justice, "the EU has no right to interfere".

The ruling that the Polish constitution carried more weight than the EU treaties drew a furious reaction from politicians in Brussels, the de facto capital of the bloc. The European Commission said it "will not hesitate to make use of its powers" to protect the primacy of EU law.

They accused Mateusz Morawiecki, the Polish prime minister, of putting the country on the “path to Polexit”, raising the prospect of Warsaw leaving the bloc as the UK did on Dec 31.

MEPs branded Poland’s constitutional tribunal “illegitimate” because it is stuffed with Mr Morawiecki and Mr Kaczynski’s handpicked allies.

Contravening Poland's laws

All member states agree to a treaty provision that dictates EU law has primacy over national law. The final arbiter of EU law is the European Court of Justice in Luxembourg, according to the membership treaties.

The constitutional tribunal said some provisions of the EU treaties and some EU court rulings went against Poland's highest law. Two of the 14 judges dissented from the majority opinion.

"The primacy of constitutional law over other sources of law results directly from the Constitution of the Republic of Poland," Piotr Muller, a government spokesman, wrote on Twitter, "Today (once again) this has been clearly confirmed by the constitutional tribunal."

Heading for 'Polexit'

“By declaring that the EU treaties are not compatible with Polish law, the illegitimate constitutional tribunal in Poland has put the country on the path to Polexit,” said Jeroen Lenaers, a MEP for the centre-Right European People’s Party.

Davide Sassoli, the European Parliament president, said:“Today's verdict in Poland cannot remain without consequences. The primacy of EU law must be undisputed.”

Didier Reynders, the EU Justice Commissioner, said Brussels would take action to ensure the supremacy of EU law and the bloc’s top court.

“There are instruments in order to reestablish the primacy of European law and the Court of Justice, as an enforcer of these decisions,” he said

Delaying funds to Warsaw

Last month, the European Commission confirmed the challenge to the supremacy of EU law was delaying the release of €57 billion in EU coronavirus recovery funds to Warsaw.

There are calls in Brussels to withhold EU budget funds from Poland, begin legal action against Warsaw or strip it off its EU voting rights in response to concerns over its illiberal shift. “We will use all the tools at our disposal,” Mr Reynders told reporters.

Pawel Jablonski, Poland's deputy foreign minister, said the tribunal ruling would not breach EU membership treaties but redefine them. Top courts in many EU countries did not always follow the European Court of Justice’s rulings, he said.

Migration and gay rights

Law and Justice has long been at loggerheads with Brussels over issues such as the rule of law, migration and gay rights. It insists that the judiciary should be the sole purview of nation states and not the EU and has ignored a number of EU court rulings.

But the Polish government has dismissed any talk of “Polexit”. An opinion poll published on Tuesday found that 88 per cent of Poles wanted Poland to remain a member of the bloc.

The tribunal opened the case after Mr Morawiecki asked for the review after the EU court said the bloc's law took precedence over Poland's law. It started hearing the case in July but had adjourned it four times before Thursday's sitting

Many of those sitting on the tribunal are government loyalists, including the court's president, Judge Julia Przylebska.

“It’s a confederation of anti-democratic forces against Poland’s membership in the European Union,” Michal Wawrykiewicz, a pro-EU lawyer, tweeted. He said it was a “black day” in Poland’s history.

Terry Reintke, the German Greens' lead MEP on Poland, said: “Unfortunately, the illegitimate Polish 'Constitutional Tribunal' cannot be considered an independent judicial body.”

“A Polexit from the EU legal order seems to become unavoidable,” tweeted Sophie in 't Veld, an influential Dutch liberal MEP.

"Widely considered to be a puppet of the current ruling party, the unlawfully composed constitutional tribunal of Poland has crossed the Polexit rubicon," said Laurent Pech, professor of European law.

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