1 How independent is the Constitutional Court in Poland?
First and foremost: the Polish Constitutional Court has never been independent. As in many democracies, 15 judges who deal with constitutional matters are appointed by politicians. However, when the conservative-nationalist government, unofficially led by PiS leader Jaroslaw Kaczynki, came to power in 2015, it went a step further. Several judges nominated by the previous government were never installed, but replaced by party loyalists. In three cases – as the Constitutional Court subsequently ruled itself – this was against the constitution. Their illegality was recently confirmed by the European Court of Human Rights: the three judges (and now two successors) were not legally appointed and therefore not competent to administer justice. The election of the President of the Court, Julia Przylebska, who pronounced the decision on Thursday, was also not in order. In July, the last ‘old-fashioned’ judge retired and PiS took full control of the Court.
Also read: Criticism of the rule of law in Poland and Hungary comes at a spicy moment
2 What exactly does the statement mean?
In short, at the request of the Polish Prime Minister, the Constitutional Court has stated that its own constitution and national legislation take precedence over European law. This reversal of the agreements within the European Union has to do with the ongoing conflicts with the Commission and lost cases before the European Court, but above all with difficult judges ‘at home’. Despite attempts to replace them, many independent judges still work at lower courts, who base their decisions on European agreements and decisions that the Polish government no longer wishes to abide by. This creates a conflict in the judiciary. In addition, the Polish Court ruled on Thursday that any interference from Brussels and Luxembourg with the appointment of national judges may be ignored. And therefore also the penalty that the European Commission wants to impose on the disciplinary chamber that the government uses to punish difficult judges. The Polish government must confirm the Court’s ruling before it is valid.
3 How much money does Poland receive from the EU, normally and in corona support?
Poland joined the European Union in 2004 and is now the largest net recipient of funds from Brussels. Last year it was about 14 billion euros. Good for 3.5 percent of gross domestic product. In addition to the annual subsidies, the corona recovery fund will provide an additional contribution of tens of billions in the coming years. But the European Commission only wants to release that money if Poland promises reforms and does not further destroy the rule of law. The decision of the Court will not speed up the payment.
4 Does the Polish government want to leave the EU?
A large majority of Poles support their country’s EU membership, but the current government wants the benefits but not the burdens of the EU. The free market, citizens who are allowed to work in all Member States, visa-free holidays and, of course, billions in subsidies are extremely popular. But she wants to get rid of rules about the humanitarian treatment of refugees, climate, guarantees in the rule of law and greater attention to LGBTI rights. Thursday’s decision will not lead to a formal ‘Polexit’ like that of the United Kingdom, but the country can place itself outside the European legal order, which is based on mutual trust. If Polish judges no longer feel bound by European law, other member states will stop extraditing suspects blindly and this will affect the investment climate and possibly open borders. If the European Commission also turns off the money tap and imposes more penalties for breaking European laws, Poland’s position could become untenable.
5 How does the European Commission react and what can it do?
Although a possible verdict had been in the air for some time, the verdict arrived in Brussels on Thursday as a sledgehammer. The EU is now effectively in unknown territory: never before has a national court issued such a far-reaching ruling. In a statement, European Commission President Ursula von der Leyen said on Friday she was “very concerned” and ordered her officials to study the ruling. “On that basis, we will make a decision about next steps.” In the short term, starting an infringement procedure is the most obvious choice. But that could end up taking years, as calls for a faster, stronger signal grow.
6 Can’t Brussels turn off the money tap quickly?
In a sense, that tap is already (a bit) closed. Pending the ruling, the Commission has still not approved the Polish request for money from the recovery fund. The chances of that happening soon are slim. And even if the Commission were to let the Polish recovery plan pass, it would seem impossible for the necessary majority of member states to agree to it. This means that the 36 billion euros to which Poland is entitled will remain on the shelf for the time being.
7 What about the rule of law mechanism?
That mechanism, which allows the Commission to cut EU funds for EU countries that violate the rule of law, has officially been in force since 1 January. But because Poland and Hungary have challenged it in the European Court of Justice, the Commission is still hesitant to use it – much to the frustration of MEPs. The Court will consider the case next week, after which a verdict will take some time. But now that the rule of law conflicts are escalating, the expectation is growing that Brussels will actually deploy the mechanism this autumn. This means that Poland may lose more money in the long run.
Also read: Why Poland will not be expelled from the EU
8 Why won’t Poland be expelled from the EU?
Because according to the European treaty there is no possibility to do so. Although a clause has been added since 2007 that allows a country to decide to leave itself, a forced departure is excluded. Apart from that, there would be little enthusiasm for such a far-reaching step. The European Commission and other EU countries are also aware that a large majority of the Polish population is pro-European. Moreover, nobody would want to risk the economic and geopolitical consequences of such a move.
How do other Member States react? Often outraged. French Europe minister Clément Beaune spoke Friday morning about “an attack on the European Union”. Heiko Maas, Germany’s foreign minister, expressed support for a possible response from the European Commission and called on Poland to comply with “all European laws”. Nevertheless, the Polish step will also be looked at with interest in some Member States for inspiration. In any case, anti-EU politicians welcomed the ruling. “The Netherlands should follow the Polish example!” tweeted Geert Wilders. French presidential candidate Marine Le Pen also defended Poland. “Elected as president, I will reaffirm the primacy of national laws and jurisdictions!”
A version of this article also appeared in NRC Handelsblad on October 9, 2021 A version of this article also appeared in NRC in the morning of October 9, 2021