The judgement has been described as a Polexit by some, but Poland appears to want to remain in the EU, while ignoring its legal order.
The European Commission was quick to react, issuing a statement reaffirmining the primacy of EU law as a founding principle of the Union’s legal order and reminding the Polish government that the European Court of Justice’s rulings are binding on all member states’ authorities, including national courts.” The primacy of EU law is a well-established part of the EU’s legal order well before Poland chose to become an EU member.
The Commission stated that it will analyse the ruling of the Polish Constitutional Tribunal in detail and will decide on the next steps to take: “The Commission will not hesitate to make use of its powers under the Treaties to safeguard the uniform application and integrity of Union law.
“The European Union is a community of values and of law, which must be upheld in all member states. The rights of Europeans under the Treaties must be protected, no matter where they live in the European Union.
“The European Commission has the task of safeguarding the proper functioning of the Union’s legal order and it will continue to ensure that.”
The Law and Justice (Prawo i Sprawiedliwość) led Polish government, introduced changes to the judiciary when it came into power. In a landmark judgement earlier in the year, the European Court of Human Rights in Strasbourg ruled that the composition of the Constitutional Tribunal did not meet the conditions necessary to be described as a ‘court established by law’. It found that it could therefore not protect the right to a fair trial.
The EU’s court of justice has also had to deal with an ever increasing number of disputes related to the rule of law in Poland. Both Dutch and Irish courts, for example, have asked for guidance from the EU’s top court on whether they can issue a European arrest warrant surrendering a Polish national to Poland given that the ECJ had found that the National Judiciary Council (KRS, which selects judges) was no longer an impartial body independent of government. This is just one example, but if companies and individuals, Polish or otherwise, cannot trust the independence of Polish courts then this is a crisis that goes well beyond Poland’s borders.