Forget Polexit – the EU Must Defend the CJEU

After the verdict of Poland’s puppet constitutional court questioning the primacy of EU law, Polexit is not really the issue. Rather, the threat for Brussels and Poland is worse: the destruction of the EU legal order from within.

One shouldn’t be fooled. The verdict of the Polish constitutional court issued last Thursday that sent shock waves through Europe was not the outcome of a sophisticated legal dispute defining the boundaries between the EU and national legal systems.

The politicised Constitutional Tribunal, whose members include leading politicians of the ruling Law and Justice party, is an extension of the government. At the request of the prime minister, Mateusz Morawiecki, this puppet court declared that provisions of the EU treaty granting the Court of Justice of the European Union (CJEU) the right to intervene when the principle of judicial independence is violated are not in line with the Polish constitution.

The goal of this unprecedented manoeuvre could not be more obvious: in July, the CJEU issued two verdicts that oblige Warsaw to withdraw legislation giving the government full control of the judiciary and the ability to punish judges for the implementation of CJEU decisions regarding judicial matters. This alleged conflict between the Polish constitution and EU treaty over the primacy of EU law – one of the pillars of EU integration – is supposed to provide an excuse for ignoring those fundamental rulings and, in doing so, further the autocratization of the country’s political system.

If one takes the Polish constitutional court’s decision at face value, the government has only three options, only one of which is realistic.

Warsaw could work towards a change of the EU treaty to make it compatible with the Polish constitution (good luck with that!). It could change the Polish constitution to make it compatible with the EU treaty (there is no majority for that). Or it could leave the EU. This is perfectly feasible – a simple majority vote in the lower house, or Sejm, could take place any time. The Polexit scenario is, thus, the one which terrifies pro-Europeans in Poland and beyond its borders. Indeed, with Poland following the British example, the disintegration of the EU would be halfway done.

However, the real battle will be over the fourth option, which would be much more devastating for the EU than any further ‘exit’ of a member state: the demolition of the EU’s legal order from within.

To put it simply: the EU cannot function without the “efficient legal protection” for companies and citizens (its indispensable part is the independence of judges from the executive power) enshrined in Article 19 of the Treaty on European Union. And there must be an ultimate arbiter – the CJEU – capable of assessing whether this fundamental principle is respected by and in the EU member states.

It is this key responsibility of the CJEU that the Polish authorities vehemently attack. They want Poland to remain part of an EU which allows its member states to shape their judicial systems as they see fit – also with judges facing disciplinary proceedings for how they ruled and being suspended for political reasons. Tolerating this would mark the end of the EU as we know it. And ultimately, the end of the EU altogether.

Polish Justice Minister Zbigniew Ziobro hosts a press conference in Warsaw, Poland, 07 September 2021, after the European Commission asked the Court of Justice of the EU to fine Poland for failing to comply with the court’s 15 July ruling. EPA-EFE/Leszek Szymanski

Credibility at stake

What true Europeans should be concerned about today, therefore, is not Polexit, which simply won’t happen in a country where more than 80 per cent of the people support EU membership. The Poles love the EU more than liberal democracy and the rule of law. And if the government went for Polexit, they would be voted out before the exit talks could even begin.

What is at stake is not Polexit, but the credibility and legitimacy of EU law and its key defender – the CJEU. Today, the primary question of EU governments and institutions is not how to punish Warsaw for the outrageous verdict of its puppet court, but how to defend the CJEU’s position as the undisputed arbiter when it comes to fundamental issues affecting the EU’s legal order.

There is only one way to achieve it, regardless of the Polish verdict. EU member states and institutions must insist on a full implementation of both rulings of the CJEU issued in July and make it not negotiable. They have all the means to do that. Poland’s slice of the EU’s mammoth 750-billion-euro coronavirus Recovery Fund is worth almost 24 billion euros (plus 12 billion euros in loans), and these grants require the approval of both the European Commission and the EU Council. Ambitious economic programs like the “Polish Deal”, announced recently by the Polish government, cannot be carried out without this huge support.

One of the prerequisites for the distribution of the money is an effective and independent judicial system. Unless Warsaw introduces the changes required by the CJEU, these conditions are clearly not met. There is no space for any compromises here: the European Commission should clearly and publicly define what constitutes the full implementation of the verdicts, and make the disbursement of the money dependent on its complete fulfilment. And the European Commission should request high financial fines from the CJEU for any delay with it. Anything else would compromise the European Commission and the CJEU, provide the Polish government with a political victory, and pave the way for other autocrats or anti-EU forces to follow suit.

Blessing in disguise

EU member states need to come out of their comfort zone and openly communicate that blatant defiance of CJEU rulings, in particular on issues related to the systemic foundations of the bloc, is a red line that must not be crossed.

Over the coming weeks and months, European politicians should be frequent guests in Poland like never before. They need to devote time and effort to engage in a dialogue with Polish society to make sure that their key message is well understood: zero tolerance for refusal to follow commonly agreed rules is not directed against the Poles, but necessary to defend what they value most – a well-functioning and coherent European Union.

From this perspective, the verdict of Poland’s Constitutional Tribunal might even prove a blessing for the EU and Poland. It exposed the real political intentions of the Polish would-be-autocrats; the mask has fallen. The Polish authorities have put the ball in court for those who want to defend the EU’s legal order. Now, they need to hit it back.

Piotr Buras is director of the Warsaw office of the European Council on Foreign Relations think tank.

The opinions expressed are those of the author and do not necessarily reflect the views of BIRN.