In early October, unofficial statements from European officials showed that the European Commission is ready to approve Poland's recovery plan as soon as November if Warsaw will agree to certain legally binding objectives to restore the rule of law. A week later, the Polish Constitutional Tribunal, chaired by Julia Przyłębska, announced that the rulings on the independence of the judiciary of the most important judicial body in the EU, i.e. the Court of Justice of the European Union, were contrary to the Polish Constitution. It was the first time in the history of the 27-strong EU bloc that a leader of a member state had questioned wholesale EU treaties in a Constitutional Court. Thus, on October 7, a de facto legal Polexit was made.
WTF: What the Facts are?
Let us remind you what it is all about.
In March this year, Prime Minister Mateusz Morawiecki (with the support of President Andrzej Duda, Prosecutor General Zbigniew Ziobro, Minister of Foreign Affairs Zbigniew Rau and the majority in parliament) submitted a request to the Constitutional Tribunal to consider whether the interpretation of Articles 1 and 19 of the EU Treaty by the Court of Justice of the European Union is inconsistent with the Polish constitution.
Why did he do that? Because the changes in the Polish judiciary introduced by his party, Law and Justice (PiS), often contradict European law (and are contrary to the Polish constitution), and judges, who are deprived of many previously existing tools of action (and at the same time of their independence), apply European norms and law when issuing judgments. This is done in accordance with the principle of the primacy of the EU law: when a judge in an EU country, when examining a case, sees a conflict between a norm of national law and a norm of EU law, he is obliged to disregard the norm of national law that is inconsistent with the EU law and to apply the norm compatible with the latter.
The Court of Justice of the European Union (CJEU), wishing to support the activity of the Polish judiciary (but not only), has significantly developed its case law on the independence of the judiciary since 2018, based on complaints brought against the governments of the EU member states and preliminary questions from courts from Romania, Portugal, Poland, Ireland, the Netherlands and Malta.
Since then, Polish courts have invoked the judgments of the CJEU, challenging key elements of the changes in the courts pushed through by the ruling coalition.
In March 2021, the Supreme Administrative Court applied the CJEU judgment and, when ruling, omitted the provision of the act amended by PiS, which prevented judges from appealing to the court against the resolution of the new National Council of the Judiciary. The CJEU, in response to a question asked by the Supreme Administrative Court, ruled that it is contrary to EU law to deprive judges of this possibility. In another ruling issued on the basis of the case of judges from Romania, the CJEU ruled that EU countries cannot lower the standards of protection of the independence of the judiciary. Zbigniew Ziobro, the Minister of Justice, removed Judge Adam Synakiewicz from the District Court in Częstochowa and Judge Marta Pilśnik from the District Court for Warsaw-Śródmieście for a month. They both implemented the judgments of the CJEU and the European Court of Human Rights. The Ombudsman, Marcin Wiącek, reminded the minister in writing that the act on the system of common courts did not allow the minister to temporarily remove judges from adjudicating for their decisions (Later, in his participation before the Constitutional Tribunal, Wiącek argued that there were no contradictions between the Constitution and the CJEU's interpretation of Article 1 and 19 of the Treaty on European Union).
The Polish government therefore needed a ruling by the Constitutional Tribunal to forbid judges from applying European law above the new Polish law. The ruling of the Tribunal is intended to have a chilling effect on judges and prevent them from using CJEU rulings to overturn changes made in the judiciary after 2015 that are unconstitutional and inconsistent with EU law and the European Convention on Human Rights. Judges will be liable to be disciplined for non-compliance with the decisions of the Polish Constitutional Tribunal. The Polish judgment will only take effect once it is published by the government in an official journal, which could take some time.
WTC: What the Consequences are?
From the point of view of EU law, Poland as an EU country is still bound by the CJEU rulings and if it fails to comply with them, a party to the proceedings, for example the European Commission, may apply to the CJEU for financial penalties. As it did in connection with Poland's failure to comply with the rulings of the CJEU from July and the judgment concerning the Disciplinary Chamber, the Commission applied for fines of up to €1 million per day. The CJEU has not yet ruled on this matter.
EU law experts on the initiative of The Good Lobby Profs believe that the Commission and the Council will violate EU law if they approve the Polish recovery plan (almost €24 billion in grants and €34 billion in loans) in the event that Poland does not apply the CJEU rulings and fulfill these recommendations.
The ruling made by the Polish Constitutional Tribunal has raised concerns that Poland could leave the EU, but the government has denied having any such intention.
A dream-like moment...
On October 10th, three days after the judgment of the Constitutional Tribunal was announced, a demonstration under the banner "We stay in the EU", with the participation of opposition politicians, including Donald Tusk at the helm, took place at Castle Square at the entrance to Warsaw Old Town. Protests were held in over 100 Polish cities, and tens of thousands attended the one in Warsaw alone.
Donald Tusk, next to whom the former Prime Minister Leszek Miller and the leaders of opposition parties also stood on the stage, said: "I am a Pole, whom seven years ago European countries chose as their head, head of the European Council. They chose me out of respect for Poland, they chose me out of respect for our difficult and beautiful road to independence, to Europe. They chose me out of respect for you and therefore let no one be surprised that I felt obliged at this critical, turning point to raise the alarm, the alarm caused by the decisions of the pseudo-tribunal, the decisions of the ruling party, which, without embarrassment, without hiding anything, decided to lead Poland out of EU. I raise this alarm with you.”
Wanda Traczyk-Stawska, a 94-year-old veteran of the Home Army and the Warsaw Uprising against the Nazi German occupation in 1944, spoke at an event: I am a soldier who remembers how blood was shed, how my colleagues died. I am here to cry out on their behalf. No one will ever lead us out of my homeland, which is Poland, but also from Europe, because Europe is my mother (…) This is our Europe and nobody is going to take us out of it." She also shouted at one participant at a nationalist picket held under the banner "I choose Poland": "Shut up, stupid boy! Be silent!”
The Warsaw demonstration was undoubtedly a success of the Civic Platform (PO) and it's leader Donald Tusk. First, because they risked organizing such an event, although its success was by no means granted – after the enormous protests of the Women's Strike in the fall of 2020, social enthusiasm subsided; but this time people again appeared in crowds. Secondly, because they have proved that the European Union has great potential for social and political mobilization. Thirdly, because they managed to separate their manifestation from party symbols and interests: there were no PO flags flying, only the "functional" politicians of the Civic Platform spoke (Donald Tusk with the mandate of the former head of the European Council, Rafał Trzaskowski as the president of Warsaw, Tomasz Grodzki as the head of Senate), there were representatives of other opposition parties, as well as activists and non-governmental organizations. In a word, it was a dream-like manifestation of the supporters of the concept of the United Opposition (just like the one that has recently defeated the ruling party in the Czech Republic in the elections).
...and a cold shower.
Do Poles really consider the policy of Jarosław Kaczyński and his right-wing party to be harmful and leading to self-exclusion of Poland from the structures of the European Union? The polls carried out after the judgment of the Constitutional Tribunal show two things: only half of the society (49%) negatively assesses the government's actions in the conflict with Brussels and is afraid of Poland's withdrawal from the EU (opposition supporters consider such a prospect to be realistic, while PiS supporters are of the exact opposite opinion). The other half (48%) is not afraid, but we don't know why. Perhaps people from this group do not believe that this is what the ruling coalition really wants, or - infected with the anti-EU propaganda of the public media – they think that the country does not need the EU and they do not agree with European values, for example regarding the LGBT rights, and feel that Poland should follow its own, separate path. It may also be the case that we (Poles) consider our presence in the European Union so obvious that many of us are unable to seriously consider the prospect of Polexit.
What are the conclusions of such polls? Firstly, as scary as the possibility of that PiS wanting a Polexit may be, it is not likely to be a political wunderwaffe for the opposition in the near future. Secondly, Jarosław Kaczyński still has the feeling that he can do his thing without losing support – if the elections were held in October, over 33% of Poles would vote for PiS (other polls show that a large part of the PiS electorate enjoys the conflicting nature of the government in its struggle with Brussels).
The comments of political analysts who see the actions of PiS as a calculated game in which Jarosław Kaczyński wants the dispute with the EU to continue are also interesting. Until when?
Most likely, Kaczyński wants to survive until political changes take place in Europe. If a fundamental change would occur in France - such as the presidency of Marine Le Pen - from then on, the Union will be completely different. It will be a Europe in which Kaczyński will want to have a place for himself. Until then, he has to wait and struggle a bit. We'll see how crazy this game is.
