The European Union’s national heads of government are readying for a fiery summit meeting Thursday which will be dominated by a clash among them over a recent ruling by Poland’s Constitutional Tribunal that declared Poland’s constitution has primacy over the bloc’s laws.
A preview of the fundamental legal and political issues that will be at stake Thursday — and the anger involved — was seen Tuesday when European Commission President Ursula von der Leyen and Polish Prime Minister Mateusz Morawiecki confronted each other in the European Parliament.
Von der Leyen threatened Poland with suspension of EU voting rights and cuts to EU funding. She warned that the Polish court’s position of national law superseding European law undermines the cornerstone of EU treaties.
Poland has received $227 billion in EU funds since it joined the bloc in 2004 and has paid $72 billion into the EU.
“I am deeply concerned,” von der Leyen told MEPs in an ill-tempered debate alongside Morawiecki. “This ruling calls into question the foundations of the European Union. It is a direct challenge to the unity of the European legal order,” she said. She added: “This is the first time ever that a court of a member state finds that the EU treaties are incompatible with the national constitution.”
Morawiecki remained defiant, accusing the EU of trying to change the constitutional balance of the bloc by presumption and blackmail. “It is unacceptable to talk about penalties,” he said. “I reject the language of threats and fait accompli. Blackmail must not be the method of policy,” he added.
He added: “If you want a sovereign European State, why not ask and get consent? No sovereign state will ever consent to this. The EU would cease to be an association of sovereign states.”
Warsaw has infuriated the EU by refusing to disband Poland’s Constitutional Tribunal, which it says is packed with political allies of the country’s ruling populist Law and Justice party, PiS, and is therefore illegitimate. The legal supremacy dispute has been intensifying for five years, since the PiS started to enact judicial reforms which Brussels and Western EU member states say are undermining the independence of Poland’s courts and subjugating them to the government.
The ruling this month that the Polish constitution takes precedence over decisions by the European Court of Justice, and in effect over the bloc’s treaties, has escalated Poland’s fight with Brussels into a full-scale confrontation and is threatening to become the worst EU crisis since Britons voted for Brexit in 2016. It is deepening an alarming rift between the bloc’s Western and Central European members.
Some of the PiS’ critics accuse the Polish populists of seeking to put Poland on course to follow Britain out of the EU, dubbed a Polexit. “The Polish People don’t want to be pushed outside the EU by their government. So, my wish, Prime Minister, is for you to come back on these fateful decisions and end this march of folly,” tweeted Guy Verhofstadt, a former Belgian prime minister and now an EU lawmaker.
He says that the Polish top court’s ruling touched on the very same sovereignty issues Brexiters cited when campaigning for Britain to exit the EU. The PiS government is taking Poles out of Europe step by irreversible step, he argued Tuesday in the European Parliament.
Polish leaders reject the accusation that they want to follow Britain’s example.
In a letter Monday to EU leaders, Morawiecki said Poland remained a “loyal member” of the bloc but warned that the EU was turning itself stealthily into an undemocratic federal superstate which was increasingly trampling on the national sovereign rights of member states.
“We ought to be anxious about the gradual transformation of the union into an entity that would cease to be an alliance of free, equal and sovereign states and instead become a single, centrally managed organism, run by institutions deprived of democratic control by the citizens,” he said in his missive.
A poll this week for Poland’s Rzeczpospolita newspaper found that 43% of Poles believe there should be a referendum on EU membership to settle the legal dispute. Of those who say there should be a plebiscite 63% said they would vote to retain EU membership.
Morawiecki and other Central European populist leaders compare the Polish legal position to a ruling last year by Germany’s top court which contradicted a previous decision by the European Court of Justice on the legality of the European Central Bank engaging in a multi-trillion-euro bond-buying program.
The German court said the program was not permitted under the EU founding treaties, while the ECJ said it was. Brussels has been pursuing a legal case against Germany over what it sees as a breach of “the principle of the primacy of EU law.”
EU officials dismiss the comparison, saying the Polish action is far broader and risks demolishing the bloc’s legal order.
But some independent experts say the two rulings, Polish and German, have exposed something much more fundamental that is playing out than divisions between populists and their foes. “Both the German and Polish cases illustrate some of the basic conflicts within the EU’s legal system,” according to Britain’s Chatham House.
“What is being challenged increasingly openly — even since the UK left the EU — is the idea of the EU as a de facto federation in which non-majoritarian institutions such as the ECJ have final say about the quality of democracy in member states,” Stefan Auer, Pepijn Bergsen and Hans Kundnani say in a commentary for Chatham House
“Right across Europe, courts and politicians are increasingly challenging the ECJ and questioning the supremacy of EU law,” they add.
Among them is Michel Barnier, a former top EU official who is now running for the French presidency.
Earlier this year Barnier, who was the bloc’s top Brexit negotiator, said France should no longer be subject to the judgments of the ECJ and must regain its “legal sovereignty.”