Eighty per cent of Poles remain committed to European Union membership, but the country's constitutional tribunal has taken – whether they like it or not – what is being interpreted as a first step towards departure from the union. By insisting that the Polish constitution and courts have primacy over the rulings of the Court of Justice of the European (CJEU), the tribunal has challenged a cornerstone of the EU treaties and legal order. The ruling marks a dramatic escalation in the tussle between Warsaw and member states over interference in judicial independence and politicisation of the judiciary by the ruling PiS party.
The CJEU's ruling that the "reform" of the courts, not least the power to discipline judges for their rulings, represents an assault on EU rule of law principles, prompted prime minister Mateusz Morawiecki to ask the tribunal to consider whether the CJEU had interfered improperly in a domestic matter. The tribunal, largely a creature of his PiS, duly found that EU institutions "acted beyond the scope of their competences".
Poland contends that such treaty competences are limited to areas like competition rules, trade and consumer protection.
But the right of the CJEU alone to interpret the scope of its own remit and the treaty provisions always has been central to the EU legal order that Poland signed up to and which it is in danger of unraveling. It is a necessary guarantor of the coherence and evenness of application of law across the union and its market. And the rule of law, including the protection of judicial independence, is enshrined in Article 2 of the Treaty on European Union.
Poland’s fellow member states have no alternative but vigorously to push back against what some are describing as a “legal coup”. That will happen through the CJEU, where a refusal to implement rulings will certainly lead to hefty fines. But Poland can also expect to see a freeze on up to €57 billion in badly needed EU recovery aid whose approval will rightly be conditional on respect for the union’s legal order.