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Polish judicial reforms and rulings may have initiated a process that effectively decoupled the country from the EU legal system.
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EU leaders may wish to end the breakdown of the rule of law with Poland as much as possible in the future, but the legal impact of the dispute cannot be ignored.
With a series of controversial judicial reforms and court rulings challenging the legal foundations of the European Union, the Polish government may have initiated a process that effectively decouples the country's legal system from the rest of the European Union. People worry that others will follow the road of Warsaw.
This may mean the collapse of the EU’s common legal system-judges refuse to extradite criminal suspects to Poland, all cross-border disputes from divorce to commercial agreements are facing challenges, and Polish judges are subject to disciplinary sanctions for applying EU law. The impact on people and businesses can be huge.
Nonetheless, in recent days, some EU leaders have adopted an increasingly conciliatory tone towards the country—a large economy that has important geopolitical significance for many of its allies. At the Council of Europe summit last week, many leaders urged dialogue on prompt punishment.
This did not ease Warsaw's comments. Polish Prime Minister Mateus Morawiecki warned in an interview with the Financial Times published on Monday that if the European Commission “launched the Third World War” by detaining pledges to provide cash to Warsaw, he would “use us Any weapon that can be used to defend our rights".
The efforts of EU leaders to avoid fighting have raised questions about the EU’s commitment to implementing the rule of law standards—and whether it is possible to reach a compromise when it comes to the basic principles of the EU’s legal system. Although Poland promised to make some changes to its judicial system, it did not promise specific details. It has yet to recede from the recent dispute-a court ruling that challenges the supremacy of EU law.
Filippo Donati, chairman of the European Judicial Council Network, said that this situation “is a huge danger for the EU”.
Donati said that the EU’s single market and its “entire system” rely on the assumption that every country will implement EU law on an equal basis. He believes that if this situation disappears, the EU cannot function. He said that Poland either accepts the "principles of EU law" or meticulously plans to "exit" the EU.
Polish officials insisted that this concern was exaggerated, and the exaggeration was to coerce Warsaw into complying with the EU's wishes. They said that Poland has no interest in leaving the European Union.
"The European Union will not fall apart because of our different legal systems," Morawiecki emphasized to the European Parliament last week.
Over the years, Poland’s ruling Law and Justice Party (PiS) has been criticized for its continuous campaign to reshape the country’s legal system.
Many Polish judges protested what they said the government systematically undermined their independence. In its 2021 rule of law report, the European Commission expressed concern about how Poland now disciplines and appoints judges.
Earlier this month, when the Polish Constitutional Court itself was deemed illegal by EU institutions, tensions intensified, saying that certain parts of the EU’s basic treaties were inconsistent with the Polish Constitution. Legal experts and Brussels officials said the ruling challenges the notion that all member states must apply EU law.
The court's ruling caused a long-simmering tension between Poland and the European Union. Members of the European Parliament put pressure on the European Commission to impose economic penalties on Warsaw. Several EU leaders issued a clear call for action.
But at a time when continental Europe has just begun its post-pandemic recovery and ambitious climate agenda, European leaders last week tried to calm their sentiment on the issue due to fears of rifts within the EU.
"I want to remain optimistic," French President Emmanuel Macron said after the summit, calling on the EU to make "real demands" through "dialogue and respect." For her part, committee chair Ursula von der Lein stated that her team will seek a combination of dialogue, legal responses and concrete actions.
This situation disturbs judges, business representatives and experts. They warned that the deadlock could have a large number of negative effects on the economy and even the daily lives of citizens.
They warned that if the cross-border divorce process with Poland is questioned, family law will soon become more complicated. Business disagreements with Poland and Polish companies may fall into a legal quagmire.
"Think of all cross-border legal disputes involving European residents and European companies, why would anyone trust Polish courts from now on?" said Laurent Pech, a professor of European law at Middlesex University.
Pech said that the first consequence could be a European arrest warrant.
"The surrender to Poland is likely to be prevented by the national courts," he said, because the judge feared that the Polish courts might be too politically compromised.
Earlier this year, the Amsterdam court had refused to extradite a Polish drug trafficking suspect, citing concerns about the rule of law and the "real risk" of the defendant not being able to get a fair trial in Poland.
In essence, European judges may question whether they can cooperate with their Polish counterparts.
"Actually, what the [Constitutional Court] made was to put Poland outside the EU legal system," said Filipe Marques, president of Portuguese judges and MEDEL, an association representing European judges and prosecutors. Promote the rule of law standards.
"When I asked Poland [the Constitutional Court] to say,'How can I continue to trust the Polish judiciary when I will not abide by the European Court of Justice's ruling?'" he said.
In Poland, some judges opposed the ruling. Dorota Zabłudowska, a member of the National Committee of the Polish Judges Association, said that the decision was illegal.
"We think it is not binding on us," she said, pointing to the "improper" composition of the court and that the institution "cannot prohibit" judges from applying European law.
However, Poland can punish judges after the fact.
Zabłudowska pointed out that judges may face the consequences of applying EU law, including "disciplinary or criminal charges."
"When the government doesn't like what the judges do," she said, "they will only send the prosecutor's office to hunt us down."
Therefore, Zabłudowska believes that European judges should carefully examine the source of any Polish judgment.
"When foreign courts receive a European arrest warrant, they should first check whether the person who issued the arrest warrant is properly appointed to a judicial office," she said.
Moravitsky has repeatedly opposed this assessment. Before parliament last week, he insisted that the recent court ruling would not devalue the EU treaty. But he still insists that the Polish Constitution is indeed the first.
He said that Polish courts “never stated that the provisions of the Union Treaty are completely incompatible with the Polish Constitution. On the contrary! Poland fully respects these treaties.”
The European economy relies heavily on the European Union’s guarantee that if a company submits a dispute to a court in Lisbon, Warsaw or Berlin, judges will use the same European standards.
If companies can no longer assume that Poland will abide by these rules, then it is possible to open a legitimate Pandora's Box.
“Once we start not to apply EU law first, we will have problems — we will fall into chaos,” said the Austrian judge Edith Zeller, who is the president of the European Association of Administrative Judges. "Then each state or each judge will adopt the method he or she thinks is better."
Government officials said that this situation could damage the EU's economy.
"The worrying thing is that people might start picking what they want," said Thomas Byrne, Ireland's Minister of European Affairs. "This is a real concern, not only for our values, but of course also for the single market."
"You can't set a standard in one country and not apply in another country," he added. "The system doesn't work."
For companies that rely on the courts to resolve disputes, the Polish Constitutional Court’s ruling has been disturbing. Not only has it created legal uncertainty, but it has also increased the ongoing question of whether Poland will receive its pandemic recovery funds from the European Union. In the rule of law dispute between Poland and Warsaw, the European Commission suspends approval of grants and cheap loans of 36 billion euros to Poland.
“Anything that leads to legal uncertainty is a concern of the business community,” said Christoph Leitl, the president of the European Chamber of Commerce and Industry. “This is not unheard of for third countries, but more of it is now It is difficult to see it in the single market, especially when companies rebuild their activities, supply chains, and networks after a pandemic."
"This ruling is likely to undermine the recovery process of Polish companies and other European companies that have business relations in Poland," he said.
As concerns about Poland’s participation in the EU’s legal order intensify, some experts worry that if Warsaw’s actions are not resolved, it may be contagious.
"For the entire European Community, this is a very dangerous precedent," said Zabłudowska of the Polish Judges Association.
The EU has disputes with other member states such as Hungary and Slovenia over compliance with certain EU standards and requirements.
"When other authoritarian countries see the Polish Constitutional Court saying that you cannot apply European law or the judgment of the European Court of Justice and nothing happens, they will do the same thing in their country," she said.
When asked if she was worried that more countries would follow Poland’s path, Zeller of the European Association of Administrative Judges said that it all depends on judicial independence.
"Every judicial system has certain weaknesses, everyone, close their eyes and say,'Yes, everything is fine,'" she said. "Let us work together to ensure that the courts remain independent."
The Balkan countries face their third elections in a year amid a rule of law crisis.
Germany is in a transitional period between the two governments and is struggling to deal with its fourth wave of coronavirus.
Róża Thun has retired from EPP and joined Renew Europe. At the same time, he has given up Poland’s main opposition party in favor of a more centrist party.
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