Historical events are hard to recognise when they happen. This is not always true but many times something happens that has the potential to change our lives and we don’t even know it. This is what happened last week when the Polish Constitutional Court issued a decision that severely menaces the integrity of EU law and that has been described as a de facto legal “Polexit”.
Since PIS (law and justice party) has gained power at the national level a series of very controversial laws have been approved by the parliament in Warsaw and by regional councils, ranging from the creation of LGBT-free zones to a ban on abortion and ultimately a reform of the judicial system. This last reform, the one at the centre of this crisis, has been accused of eliminating the separation between the judiciary power and the executive one by allegedly appointing justices loyal to the party in power to the constitutional court, therefore violating many basic principles of the EU, chief among them the rule of law.
These events have spurred Brussels to begin a series of actions to try and stop the extremization of the east European nation. However, the European system is not well designed to cope with a regression of any EU democracy. Today we find ourselves in a situation in which both Poland and Hungary are trailing behind the other 25 EU countries when it comes to social rights and democratic legitimacy. As we have two “rogue” nations there is no possibility of acting through the Council where unanimity is needed to achieve any significant results by enacting art 7 of the TEU. In this sense the Polish and the Hungarian government have each other’s back and can keep stalling and avoiding any consequence.
This is clearly a huge problem for the Union and no clear solution has been found. However, some ways to pressure the two nations into a more legal behaviour have been found. Arguably the most effective one has been the ‘rule of law criteria’ that were attached to the NextGenerationEU funds in summer 2020. In addition to this, the Court of Justice of the European Union and the Commission have repeatedly asked Warsaw to cancel these reforms without any success.
Last week’s sentence is crucial because the court refused the principle of primacy of EU law over national law. This principle is key in ensuring the functioning of the Union and the effectiveness of its laws. Without is the European Institutions would have to legislate in a way that is respectful of 27 different constitutions and national legal orders, a feat that is almost impossible. In this sense the Polish decision seriously undermines the legal and political integrity of the Union.
As we have already said the decision has been called a first step towards Polexit. The tension between Brussels and Warsaw is higher than it has ever been. The president of the Commission Ursula von der Leyen has spoken, affirming that the primacy of Union law is not a matter of discussion and, like her, many other EU officials have come out to defend the Union. These events have cast a shadow over the approval of the €57 billion directed towards Poland that were set to be approved at the end of the month.
The Polish PM has affirmed that the government does not wish to leave the Union, however doubts remain as to whether permanence is possible in the current condition of not compliance with EU law and basic European principles and values.
For sure this is a critical moment for the Union. On the one hand if Hungary and Poland can be convinced to partake once again in the process of European integration, Europe will be stronger than ever, on the other a failure and possibly seeing Poland and Hungary leave could mean the end of the European project.
a cura di Umberto Costa Broccardi