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Crisis erupts as Warsaw court declares Polish constitution trumps EU law

Poland's constitutional court has sparked a crisis for the European Union's legal system by declaring that the Polish constitution takes precedence over the EU's treaties.

(CN) — Poland's constitutional court set off a legal crisis within the European Union on Thursday by declaring that Poland's constitution and not EU laws are the primary law of the land.

The Constitutional Tribunal's ruling was widely expected but nonetheless will enflame tensions between Warsaw's right-wing ruling Law and Justice party and the European Commission, the EU's executive body and guardian of the bloc's founding treaties.

The tribunal ruled that provisions of EU treaties and some EU court rulings are incompatible with Poland's constitution and therefore cannot serve as the country's primary law. The ruling also said that Poland remains a sovereign nation despite its membership in the EU.

“An historic judgment,” said Zbigniew Ziobro, Poland's justice minister and the architect of his country's controversial judicial reforms. “The tribunal has set the constitutional limits of European integration and permissible EU interference in Polish cases.”

Two of the 14 judges deciding the case issued dissenting opinions. The ruling goes against a core principle within the EU's legal system that the union's supranational laws, rules and court decisions must be adhered to by all 27 members of the bloc. This principle is also the linchpin to the EU’s goal to integrate its member states into a kind of European federal union.

“This is a legal revolution,” said Rene Repasi, a professor of international and European law at Erasmus University in Rotterdam, on Twitter. “Admittedly it’s a captured court, but this is furthest step towards a legal exit from the EU ever taken by a national court.”

The clash between Warsaw and Brussels goes back to controversial judicial changes the Law and Justice party passed after coming to power in 2015. Critics accuse the right-wing nationalist government of stacking the courts with its allies and pushing out judges it doesn't like.

In its defense, Poland alleged the old court system needed to be overhauled because it was corrupt, inefficient and filled with communist-era judges. To achieve its goals, the Polish government set up new disciplinary chambers and other mechanisms to oust judges it didn't like and streamline the legal system.

In December 2017, the European Commission took the major step of initiating infringement proceedings against Poland over its judicial reforms.

Since then, the European Court of Justice, the EU's highest court based in Luxembourg, has repeatedly sided with the commission and declared Poland's judicial reforms unlawful.

Hardening its position, Poland refused to back down and Law and Justice leaders reject the supremacy of the EU courts over Polish law.

EU courts insist EU law is primary, but this legal position remains open to dispute and it is a source of frustration across the EU. The supremacy of EU law over national laws played a major role in Brexit and pushed many Brits to vote in 2016 for the United Kingdom's withdrawal from the bloc. Alluding to Brexit, many legal experts dubbed Thursday's ruling Warsaw's “Polexit” from the EU legal system.

In 2020, Germany's Federal Constitutional Court in Karlsruhe shocked the EU legal world when it questioned the primacy of EU law in a dispute over a European Central Bank bond-buying program. Fearing the German court had undermined the primacy of EU law, the European Commission launched an infringement action against Germany over the ruling. Poland has pointed to the German case to back up its argument.

But the fight in Poland is the most contentious.

Earlier this year, Prime Minister Mateusz Morawiecki asked the Constitutional Tribunal to decide whether EU or Polish law was primary when it comes to deciding how Polish courts should be organized and managed.

On Thursday, the tribunal gave its answer, though its finding was immediately criticized as both deeply flawed and issued from a court whose impartiality is questionable. Critics contend the court is stacked with pro-government judges, some who were unlawfully appointed, and that the tribunal's rulings are invalid.

“Why have Polish authorities engineered an [unconstitutional] Polexit from EU legal order?” said Laurent Pech, a law professor at the Middlesex University London, on Twitter. “Answer: to establish a Soviet-style justice system so that autocratization can happen undisturbed.”

What effect Thursday's ruling will have on relations between Warsaw and Brussels is unclear, but it will certainly intensify the clash.

The fight has reached a decisive phase with the EU threatening to withhold tens of billions of dollars in coronavirus recovery funds and slap hefty fines on Poland unless it abides by the Court of Justice rulings and takes steps to stop what Brussels sees as its “democratic backsliding.”

Courthouse News reporter Cain Burdeau is based in the European Union.

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