EU-Poland’s worsened relations and what it means for the EaP

2021 / 11 / 02

Nino Chanadiri, MA, Ilia State University

Relations between Poland and the EU have been strained since Poland’s Constitutional Court ruled on October 7th that Polish laws are superior to those of the EU if they come into conflict with the Polish Constitution. The tribunal started to review the supremacy of the law in July after the European Court of Justice (ECJ) pointed out that Poland’s latest judicial system changes were in violation of EU laws, claiming a risk of political control over judges and the judicial system being put into question regarding its independence and impartiality. The Polish Constitutional Court’s ruling  essentially means the rejection of the primacy of EU law, which is a foundation for the European Union. So, unsurprisingly, this creates a crisis for the EU.

The response from the EU was strong and clear: that the Commission will analyze the ruling of the Polish constitutional tribunal. However, it has already stressed its position that EU law has primacy over national laws and all rulings by the ECJ are binding for all member state authorities, including national courts. It also said it will not hesitate to use its power to safeguard this principle. The decision of the Constitutional Court caused protests in Poland, and people gathered to show support to the EU. Donald Tusk, the former EU leader and ex-Prime Minister of Poland, also joined the protests and urged people to defend Poland’s democratic achievements and continued membership of the EU.

Background to the controversy

Since 2015, when the current ruling right-wing conservative party ‘Law and Justice’ came to power, Poland started to face problems with Brussels over a number of topics, including the rule of law. Poland began periodically initiating controversial judicial reforms which have been repeatedly condemned by the EU. The explanation for the reforms was the aim to “cleanse the courts from communist era mentalities and corruption.” Examples include changes in the supreme court, such as lowering the retirement age from 70 to 65, as a result of which dozens of judges lost their positions. However, the European Court of Justice ruled this was illegal and ordered Poland to reinstate the judges. The same happened in general courts, where the retirement age was lowered from 67 to 60 for women and to 65 for men. The law left the right to extend the period of a judge’s active service to the Minister of Justice, which, as the ECJ said, meant that the executive could have influence on the judiciary.

Another wave of criticism followed after Poland initiated a law to introduce disciplinary measures for judges, meaning they could be investigated and sanctioned for their court rulings by judges selected via Parliament and appointed to disciplinary hearings. Officials from the UN and EU say that this bill could result in judges being removed for their decisions,  such as those against government reforms. In March 2019, the European Commission stated that the new disciplinary regime undermined judicial independence. The case was referred to the ECJ. In July 2021, the ECJ ruled that the disciplinary regime is not compatible with EU law.

The ECJ’s ruling was followed by Poland’s deciding that it is not going to put EU law superior to national law. This decision was supported in Hungary, which shares the position that national constitutional courts have the right to examine the limits of EU competences.

Is it leading to a potential Polexit? What do the people want?

The Polish Constitutional Court’s decision was certainly risky, and it might have financial consequences for Poland, as conversations about fining it for ignoring ECJ rulings have been reported. But now, another question is being actively heard in Western media as to whether this might lead to Polexit or result in a Polish Euromaidan. The Polish government has said it has no plans to leave the Union.  And, indeed, it will be far more difficult for Poland to make this decision than it was for Britain, as there is no public support for it. September polls showed that 88% of Poles want to remain in the EU, and the number is bigger in large cities. They also showed that 57% of Poles do not think Polexit is a realistic scenario, while 30% think it could happen. It can be assumed that if the situation leads to Polexit, it will be met by high public resistance, which could dangerously escalate the situation in Poland.

Why is this important for the EaP and Georgia?

The relationship between Poland and the EU is important for EaP countries, including Georgia. The EaP has benefited from Poland’s support. Poland, together with Sweden, proposed the creation of the EaP in May 2008, being interested in stabilizing the Eastern neighborhood and minimizing Russian influence. Poland has also supported those EaP countries with AA to get confirmation that their European aspirations are being taken seriously. The EaP was initiated during the ‘Civic Platform’ party government, which nowadays is in the opposition. Analysts have been saying that internal political disagreements between the ‘Civic Platform’ and ‘Law and Justice’ parties have impacted every political aspect of Poland, including international affairs. However, the EU has often mentioned that Poland remains a key supporter when it comes to relations with Eastern neighbors and the EU enlargement policy.  But if the Polish trend of strained relations with the EU continues, it will be difficult to say how long its voice is going to have an influence.

On the other hand, tendencies in member states, which are seen by Brussels as illiberal, are becoming a challenge for the EU founding principles. This might push the EU to concentrate on dealing with these challenges through strengthened internal integration. It is very likely to have an influence on the EU's vision for neighborhood partnerships, and result in diminishing possibilities of further enlargement. However, it does not mean abandoning neighborhood policies. Depending on the situation in the EaP countries, it is more likely that the EU will work on deepening cooperation with them and helping them to come closer to EU standards, rather than accepting their accession wishes in the near future.

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