It is a decision that shakes the whole of the European Union. On Thursday, October 7, the Polish Constitutional Court, the country’s highest court, ruled against the primacy of certain articles of European treaties over the country’s Constitution. “European bodies are acting beyond their competence”, decided Julia Przylebska, its president. According to this same court, criticized for its close proximity to the PiS, the conservative party in power, several EU articles are “incompatible” with Polish texts.
For its part, the EU reacted on Thursday through David Sassoli, the President of the European Parliament: “The primacy of European law cannot be called into question. Because it is attacking one of the founding principles of our Union.” A legal maneuver also qualified as “extremely serious” by the Quai d’Orsay. For the professor of constitutional law Dominique Rousseau, quoted by AFP, “these proposals look like a coup d’etat [de la Pologne] against the rule of law “. He recalls that “it is not Europe which imposes its values on the 27 member states” but that the European treaties “are based on the common constitutional traditions of states”.
At the origin of this pass of arms is a law passed by the PiS, which entered into force in May 2020, which makes it possible to sanction Polish judges who question the reforms of national justice. However, this law is considered to be contrary to respect for the rule of law of the EU. The latter then launched an infringement procedure in April 2020, then seized the Court of Justice of the European Union (CJEU) in March 2021. “Poland made a commitment to respect the principles of the rule of law when it joined the EU in 2004 and this is not the case”, analysis for franceinfo Florence Chaltiel-Terral, professor of public law, specialist in the EU.
“When a State does not respect these principles, a procedure can implicate this State. It is article 7 of the Treaty of Lisbon. It has already been triggered for Hungary and Poland, three years ago. “
Florence Chaltiel-Terral, professor of public lawto franceinfo
Section 7 was “introduced in the Amsterdam Treaty in 1997 in order to protect the values of the European Union”, precise the website of the European Parliament. It can provide for sanctions going as far as depriving the country of its voting rights within the EU. “It is a complex procedure with enormous precautions and ultimately ineffective”, warns Sylvie Torcol, lecturer in public law at the University of Toulon. Despite the opening of the procedure three years ago, “the EU has not slapped the table by saying ‘stop’ but has used diplomacy more than binding measures “.
In fact, the decision of the highest Polish court is not unprecedented in the history of the member countries. “There have been several jurisprudence of Constitutional Councils, in France, in Germany, even in Italy, which said that the Cinstitution national vote voted by the people took precedence over the treaties of the European Union “, explains Florence Chaltiel-Terral.
“The Polish court opens the door to the possibility of not respecting its commitments to the rule of law, and this is more a political problem than a legal one.”
Florence Chaltiel-Terral, professor of public lawto franceinfo
An analysis shared by Clément Beaune, the Secretary of State for European Affairs, interviewed on BFMTV. “It is not a technical or legal subject, but eminently policy, which is part of a long list of provocations against the European Union “, he lamented.
#Poland | “Poland, which no longer recognizes the primacy of European law, is extremely serious. “⤵️⤵️@JJBourdin_RMC #BourdinDirect pic.twitter.com/rnJBFqUob2
– Clement Beaune (@CBeaune) October 8, 2021
Despite the controversy aroused, Poland recalled that it did not wish to leave the EU. Some 80% of Poles also support membership of the EU and oppose the famous “Polexit”. “Poland’s place is and will be in the European family of nations “, Polish head of government Mateusz Morawiecki said on Friday. And the reverse seems unlikely, because this measure is not provided for in the European treaties.
“We are reaching the limit of building Europe through law. There is the possibility of suspending voting rights and European funds but I don’t think we will go that far”, continues Florence Chaltiel-Terral. Yet the threat is real. Last month, EU Economy Commissioner Paolo Gentiloni warned that the dispute could have serious consequences. “consequences” on the disbursement of stimulus funds to Poland. The EU has yet to approve the 23 billion euros in grants and 34 billion euros in cheap loans planned for this country.