Poland risks EU’s foundations in bid to ‘legalise authoritarian takeover’

For six years, EU member states have fiddled while Poland’s populist government burned down its constitutional order – and now the flames are spreading.

Poland’s ruling Law and Justice (PiS) party worked with speed and focus after its 2015 election victory to capture and politicise three public institutions: public television, the public prosecutor and – most significantly – the courts.

Public television is now a government mouthpiece, and the prosecutor operates as the extended arm of the justice minister. Most significantly, though, even the highest courts are packed with illegally appointed judges, controlled by an illegal disciplinary body.

Warsaw insists its actions are legal and has ignored European Commission warnings that it is undermining the rule of law and other fundamental rights that underpin EU membership.

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Now Poland is at a cliff-edge in its relationship with Brussels and has called into question the legal foundations of the entire EU. What many saw as an arcane legal dispute in a distant part of Europe has now shifted up a gear into an existential battle over the European single market and even Ireland's export-driven economy.

On Thursday the constitutional court in Warsaw announced, in a 12-to-two ruling, that some EU laws and two fundamental articles of the European treaties, to which Poland signed up on joining in 2004, were now incompatible with the Polish constitution.

"The organs of the EU are acting outside the competence recognised by Poland," said court president Julia Przylebska in her ruling.

This was the ruling the government sought last March when it asked the court, which is packed with political appointees, to examine the relationship between Polish law and the treaties of the European Union.

Defying doctrine

By insisting that Polish law has primacy in Poland, it is defying a doctrine that all EU members respect: that EU law, the treaties and the Court of Justice of the European Union (CJEU) have the last word.

And it is an attempt to slam the door on a series of rulings by the CJEU in Luxembourg, and the European Court of Human Rights in Strasbourg, that Poland's judges are political playthings, the courts in which they preside illegal tribunals.

Even the European Parliament described Poland's constitutional court last month as "illegitimate".

Just last Wednesday the CJEU issued yet another ruling, warning that Warsaw’s reforms have given “rise to reasonable doubt in the minds of individuals as to the independence and impartiality” of judges and courts.

EU experts are alarmed at what they see as a deliberate attack on the legal order of the EU, upon which the entire day-to-day functioning of its single market depends.

"If you defy the supremacy of EU law, you break up the unity of the single market, what is legal in Poland is not legal in Ireland, and before you know where you are, the whole system has foundered," says Prof Gavin Barrett, an EU law expert at UCD. If Poland is willing to defy EU law, he adds, the EU has no way of protecting how any money it gives to Poland is spent.

Big battleground

And money is now the big battleground, since the European Commission suspended €24 billion destined for Warsaw’s post-pandemic recovery plan, citing rule-of-law concerns. Starting a pushback against the EU, Polish politicians and the country’s central bank president have all insisted in recent days that Poland can finance out of its own pocket its post-pandemic “Polish deal” programme of tax cuts and higher welfare payments.

Prime minister Matteusz Morawiecki and PiS chairman Jaroslaw Kaczynski insist they are not pushing for Poland to depart the EU – a so-called Polexit. But by challenging its legal foundations, they have brought the EU into uncharted waters.

"This is not a legal dispute, as the Polish government pretends. It is an attempt to legalise an authoritarian takeover of the independent institutions in Poland," says Piotr Burda, Warsaw head of the European Council on Foreign Relations. "This is a failure of the EU, in particular its member states, who have been very slow to react to what's going on."