Poland is walking on thin ice: the choice between IN and OUT

The latest ruling of the Polish Constitutional Court undermining the principle of the primacy of EU law has clearly deteriorated the already precarious relations between Poland and the European Union. Now, rumors on a possible Polexit are becoming increasingly insistent. 

Ongoing frictions between Poland and the EU

“The recent ruling of the Polish Constitutional Court puts much of it into question […]. I am deeply concerned […] for the foundations of the European Union. It is a direct challenge to the unity of the European legal order”. These are the words that Ursula von der Leyen said at the European Parliament’s plenary on the rule of law crisis in Poland and the primacy of EU law that took place on the 19^th October 2021. At the core of this discussion lies the sensitive ruling of the Polish Constitutional Court that was issued on the 8^th of October, according to which the Constitution of Poland has precedence over EU legislation in the event of a clash between national and European laws. 

In the same vein, the country criticizes the EU action concerning the appointment of Polish judges. In this field the Union has been assigned by Treaty the role of supervisor of the process’ lawfulness, yet Poland has accused it of acting ultra vires, or in other words, beyond its competences. Undoubtedly, this ruling constitutes a turning point for both parties involved. From the Polish perspective, this event has given to Caesar what is Caesar’s, as these adjustments have proved pivotal to render the Polish judicial system responsive to voters’ values and claims. Yet, Brussels’ point of view greatly diverges, since the ruling has been perceived as a clear attack to the core values upon which the Union is founded. By contravening the principle of primacy of EU law as well as jeopardizing the independence of its judges, Poland has breached the provisions contained in the Treaties that it agreed to sign upon its accession to the EU. 

One among many

It must be acknowledged that this event is not the first, but it is rather the last of a series of episodes that have contributed to shape what has been called the ‘rule of law crisis’ in the last decade. The latter has been characterized by a crescendo of tensions between the European Union, on one hand, and Poland, along with Hungary, on the other. 

The starting point of these frictions can be traced back to 2012 in Hungary, when the outcome of national elections turned out to be in favor of the right-wing Fidesz Party that brought its leader, Viktor Orban, to power. By relying on a majority of two-thirds in the Parliament, the president managed to put forth a succession of amendments to the Constitution that soon proved to be not only a threat to the system of checks and balances, but a serious breach of the rule of law principles of Article 2 of the Treaty on European Union (TEU). 

First, these modifications imposed a reduction of the retirement age of judges, which allowed the Hungarian government to designate new magistrates for  the vacant positions. Second, provisions were introduced to highlight that a family has to be heterogenous in nature, defining “mother, a woman; and father, a man”, preventing homosexual couples from being married and adopting children, and hence violating the rights of LGBTQ people and  denying their protection against any forms of discrimination. 

Third, in order to suppress opposition to the government and to the Hungarian nation as such, a measure was taken to limit the freedom of expression, especially in the media. Fourth, in the wake of the Covid-19 pandemic, Orban’s introduction of the state of emergency went hand in hand with his decision to acquire the power to “rule by decree” for an indefinite time. Eventually, the Hungarian stance on the management of migrants and refugees got to the center of criticism. This was due to the refusal of entry to asylum seekers, as well as to the  national police’s extended powers to remove any irregular migrant, even with the use of force. These moves were perceived as a direct hazard towards the fundamental values at the core of the EU, beginning with the independence of the judiciary and passing by democracy, human rights and freedom of expression. 

The Polish question through time

On its behalf, Poland enacted a number of contentious laws since the end of 2015, which later brought the European Commission to issue a reasoned opinion for a clear risk of serious breaches of EU law under Article 7 TEU. Among these legal acts, the Polish parliament acquired the capacity to dismiss judges belonging to the previous government in order to appoint new ones. Additionally, the media were supervised so as to avert the rise of any form of opposition, and eventually police powers embodied an increased surveillance on citizens as well as extended access to data. 

The climax was reached at the end of 2020, when the Council of the EU was supposed to give its green light to the adoption of the EU budget and the post-pandemic recovery fund. For the first time, the allocation of funds devoted to each country was submitted to rule of law conditionality. In other words, given the non-compliance with the fundamental principles at the basis of the Union membership, Hungary and Poland were technically excluded from receiving their share of the budget. It is for this reason that their respective leaders, Viktor Orban and Mateusz Morawiecki, decided to make use of their veto power. This move paved the way for tensions and resentments in the different Member States. Without unanimity, the new budget and the recovery fund could have not been financed up to €1.8 trillion, which would have prevented countries from undertaking their recovery from the pandemic. The eventual compromise was found in December, as the Council agreed upon submitting the legality of this new mechanism under the scrutiny of the European Court of Justice. Since the EU responded to their expectations, Hungary and Poland revoked their veto allowing the budget to be adopted and thus the money to be redistributed.  

What is the future for the European Union?

The previous and ongoing events involving Hungary and Poland have been putting the foundations of the EU at odds. Especially at the very beginning, the Commission opted to initiate simple infringement proceedings in accordance with Article 258 of the Treaty on the Functioning of the European Union (TFEU). Later on, it limited itself to launching the mechanism of preventive measures for the existing risk of breaches of EU law under Article 7 TEU. Despite the possibility of the Commission to go further by imposing sanctions on the countries in question, the ultimate decision falls in the hands of the European Council, which is required to act by unanimity. By relying on tacit agreement, Hungary and Poland count on each other’s support, which renders difficult, if not impossible, the attainment of a unanimous vote. 

In this framework, the Union seems to be facing a deadlock. On the one hand, acting under the sanctions mechanism of Article 7 TEU is not likely to succeed, yet taking no actions, on the other, would mean losing credibility. In order to solve this stalemate, Mario Telo, professor of political science and international relations, suggests two potential solutions. The first and most feasible involves the initiation of a process of differentiated integration. Like the Schengen Treaty, which allows each Member State to choose whether to join or not, this system would lead to the creation of a hardcore of countries willing to cooperate and collaborate together without being constrained by Treaty provisions. This would help the EU overcome the veto that Hungary and Poland are often likely to use for Council’s unanimous decisions. By observing the win-win relationships that could result, Telo is persuaded that the other countries will follow suit.  The second option, but certainly the most difficult to put in practice, would imply an institutional change so as to guarantee both the well-functioning of the EU and its enduring future. 

What is the future for Poland?

Poland’s membership is undoubtedly uncertain, as rumors on a possible Polexit from the EU have become increasingly insistent. Nonetheless, a Polish withdrawal from the Union seems far from being a reality. Since its accession, the country relies on a great amount of EU funds that have fostered its growth, stability and now recovery from the pandemic. At the same time, at the EU level the Parliament is advocating for the protection of Polish citizens, who are protesting against the government’s choices to violate rule of law principles and calling upon the Commission to take the necessary actions. 

The recent outbreak of tensions on the border between Poland and Belarus doesn’t favor a reconciliation with the European Union either. As a matter of fact, Belarus has been pushing migrants coming from the Middle East towards the Polish border. By using people as political instruments, the government of Lukashenko aims at destabilising the already fragile status quo of the Eastern countries vis-à-vis the European Union. In the wake of this crisis, the response of the Polish government was immediate and reached its climax on November 16th, when Poland made use of tear gas and water cannons to resist migrants’ attempts to cross the border. Regardless of the inhuman conditions that those migrants are experiencing, including lack of water, proper shelter and heating, the Polish government has announced the construction of a wall this December. 

It is clear that this decision is in violation of core EU principles. If Poland decides to open room for discussion and cooperation, the Union will step in to support the Polish government, as it was the case for Italy during the 2015 migration crisis. However, the Eastern country’s engagement in showing its willingness to keep its label of Member State remains to be observed in the foreseeable future. 

[This article was first published in the issue 35 of the magazine]