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EU Commission President von der Leyen: »A defining moment in her term of office«
Photo: John Thys / AFP
Poland's government has bet on escalation in the dispute with the EU - it may have gotten even more.
The judgment of the politically occupied Warsaw constitutional tribunal, issued at the request of Prime Minister Mateusz Morawiecki, declared key parts of the EU treaty to be incompatible with the national constitution.
It lays the ax to the foundation of the EU - the principle that the case law of the EU takes precedence over that of its member countries.
The first reactions from Brussels and other parts of the EU already show that the ruling is more than just another step of escalation in the dispute that has been smoldering for years between the EU and Warsaw over the dismantling of democracy and the rule of law in Poland. No member state of the EU has ever made such a declaration of war - not even the British, who have left the community but never questioned its foundations.
The EU was "a community of values and law," declared the EU Commission less than three hours after the verdict was pronounced in Warsaw.
It will "not hesitate to use its contractual powers to ensure the integrity of Union law and its uniform application." The Brussels authority has not yet spelled out what that means.
But the pressure on the Commission to show a tough reaction is mounting.
Vehement calls for sanctions
"This is an attack on the EU as a whole," said Jeroen Lenaers, judicial spokesman for the Christian Democratic European People's Party in the EU Parliament. With the application for the judgment, Morawiecki had "not only legitimized the illegal judicial system in Poland, but also questioned the basis of the EU". Katarina Barley (SPD), Vice President of the European Parliament, calls for the money requested by Poland from the EU's Corona rescue fund to be frozen. "Paying out the corona development money is out of the question for the time being," Barley told SPIEGEL. In addition, the Commission must now finally use the rule of law mechanism of the EU budget against Poland, which has been available since January, which enables the withdrawal of funding.
In order to force this, the Green politician Sergey Lagodinsky wants to press ahead with the threatened legal action against the Commission for failure to act in the Legal Affairs Committee of the European Parliament, of which he is Deputy Head. "There are now no other effective means than withdrawal of money," said Lagodinsky. His party colleague Daniel Freund already sees the Poland crisis as "one of the defining moments of Ursula von der Leyen's term of office".
A tough reaction from the Commission President could cost Poland dearly. The country is by far the largest beneficiary of EU funds, in 2019 alone the country received a bottom line of twelve billion euros from the Brussels pots. In addition, Warsaw has applied for almost 24 billion euros in non-repayable grants from the Corona reconstruction fund, plus a further twelve billion in loans. Together this corresponds to almost seven percent of Poland's economic output.
The commission has so far withheld the corona funds, but recently indicated that it would give the green light for the first tranche in November.
That now seems hard to imagine - especially since respect for the rule of law is one of the conditions.
"The commission really can't help but withhold funds," says SPD politician Barley.
In addition, the Council of Member States must also approve the payment with a qualified majority.
That means: 15 of the 27 EU countries with at least 65 percent of the EU population must agree.
Even before the Warsaw court ruling, diplomats from several EU countries indicated that the disbursement of the funds in the Council could fail if Poland did not give way in the legal dispute.
Now the exact opposite has happened.
Is the Polexit coming?
The consequences are currently hardly foreseeable. Poland has moved further and further away from the rule of law, and the fronts have grown tougher. Calls from the European Court of Justice to shut down a disciplinary body for judges immediately were ignored. The European Court of Human Rights recently even declared the composition of the constitutional tribunal to be illegal, as its members were selected by the national conservative government under Poland's strongman Jarosław Kaczyński. Now this government has practically empowered itself to disregard the judgments of the European judges.
Even experts are puzzling how Poland and the EU could find their way out of the impasse. "The problem is practically impossible to solve," says the Göttingen European lawyer Alexander Thiele. At most, theoretically, there are two possibilities. "Either the EU changes its treaties," says Thiele, "or Poland changes its constitution." But both are completely absurd. A change in the EU treaties would require a unanimous decision by all member states and, in some of them, even referendums - not to mention political will. The idea that Poland will amend its constitution to make it EU compatible seems even more absurd.
There is still a third possibility: Poland's exit from the EU. The Bielefeld legal scholar Franz Mayer tweeted that the respect for EU law is no less than the “business basis” of the EU. “Either they go, or they change the Polish constitution.” In any case, the court ruling is in truth a “politically controlled escalation of the rulers against the EU and all other member states”. It could be interpreted “as a declaration in accordance with Article 50 (exit from the EU)”, according to Mayer.
Some observers point out that the verdict will only be final if the government publishes it in the legal gazette - which in previous cases, such as a verdict on abortions, took months. "But these are just legal subtleties," says Thiele. “The damage has already occurred. The government can now invoke the judgment and override EU law whenever it suits it - also in future cases. "
That is a key difference to the controversial judgment of the German Federal Constitutional Court from last May.
The Karlsruhe judges had objected to the bond purchases by the European Central Bank and also questioned the primacy of the European Court of Justice - which the Polish government cannibalized for its own purposes.
The two judgments are hardly comparable, says Thiele.
The Federal Constitutional Court only ruled on an individual case and at the same time emphasized the general primacy of EU law.
The Polexit, warns FDP MEP Moritz Körner, is "no longer just a pipe dream of right-wing populists in Poland, but unfortunately a real danger."
"The next election in Poland will now be a fateful election about whether Poland can remain a member of the EU or not."
