Polexit - Is Poland contravening the rule of law?

By Alexander Lee

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Pro EU Demonstration at the Main Square in Krakow, Poland on October 10, 2021.

Based off https://dgap.org/en/research/publications/possibility-polexit


The recent standoff between Poland and the EU stems from an issue regarding the rule of law. It has escalated into a push for the ‘Polexit’ motion brought about by the Polish Prime Minister Mateusz Morawiecki, backed by all but one governmental authority. Overseen by a court that was unconstitutionally formed,the first aspect of the “judgment” mentioned that some provisions of the TEU are inconsistent with some articles of the Polish Constitution –– for example Art 1 and 4(3) of the TEU are inconsistent with Art 2,8 and 90(1) of the Polish Constitution –– and highlighted the necessary conditions under which the EU acts ultra vires and violates the principle of conferral. The second aspect of the “judgment” discusses Art 19(1) and Art 2 of TEU. If they were to be understood as giving power to Polish judges to consider the legality of appointment of other judges, they would be inconsistent with the Polish Constitution. [1]


The “judgment” contains a number of curiosities, the first of which being the inconsistency of a court in a Member State of EU law declaring some parts of EU treaties unconstitutional, even after that same law validated the accession of the country to the EU in the past. Prof. Wojciech Sadurski offers that the real reason for the “judgment” is to confer power on Polish governments and Constitutional Tribunals to declare some judgments of the ECJ ultra vires because they are based on those aspects of EU treaties that are unconstitutional. He noted that judicial independence is a broader part of an overall effort to dismantle the rule of law, and that this perspective suggests such changes will be toxic to the legal system.


Other representatives of member states such as Belgian Prime Minister Alexander de Croo have suggested that Poland is acting like a spoilt brat and that it wants the “advantage(s) of being in a club” without “respecting the rules”. However, other representatives like German Chancellor Angela Merkel have underplayed the importance of the rule of law, stating that “a cascade of EU cases is not a solution”. Whatever the case, “Polexit” seems to be becoming a reality, and there are serious doubts as to whether this could open the floodgates to other EU states leaving, especially post-Brexit. [2]


However, the circumstances of “Polexit” are vastly different from its UK counterpart. For the latter, one of the UK’s nations (England) dictated to the rest that the UK as a whole would be leaving the EU against the wishes of many (among them the Scottish). Art 50 was invoked via referendum, entailing at least some kind of democratic process. “Polexit” on the other hand may occur without a vote. This seems to also go against the will of the people, which is more significant given Poland’s status as a sovereign country, with those voting to stay in the EU registering at 80%. Public demonstrations in Warsaw of approximately 100,000 people are further evidence of this anti-Polexit sentiment. [3]


It remains to be seen whether the EU can uphold the rule of law while adequately satisfying all parties involved.




References:

[1] Henry Ridgwell, 'Polexit': Is Poland About to Quit the European Union?’ (VOANews, 11 Oct 2021), https://www.voanews.com/a/polexit-is-poland-about-to-quit-the-european-union-/6266377.html (accessed 6 Dec 2021)


[2] Dan Furniss, ‘A Polexit in the Making?: Polish PM accuses EU of blackmail as rule of law row continues’ (Littlelaw, 26 Oct 2021), https://www.littlelaw.co.uk/2021/10/26/a-polexit-in-the-making-polish-pm-accuses-eu-of-blackmail-as-rule-of-law-row-continues/ (accessed 6 Dec 2021)


[3] Martin Hannan, ‘Polexit: Will Poland follow the UK and leave the European Union?’ (The National, 11 October 2021), https://www.thenational.scot/news/19639540.polexit-will-poland-follow-uk-leave-european-union/ (accessed 6 Dec 2021)