The fundamental principle underlying the concept of a union is that member states share common rules, underpinned by common enforcement. The recent ruling by the Polish Constitutional Court calls that principle into question.
The country’s highest court ruled that some points in Articles 1 and 19 of the EU treaties are incompatible with the Polish constitution, meaning the court rejected the principle of the primacy of EU law, a foundational principle of EU integration.
“The principle of primacy is central to the operation of the EU legal system. The EU as we know it could not exist without it,” Pablo Castillo-Ortiz, a lecturer in law at the University of Sheffield, said.
The ruling is the culmination of a long legal battle between Warsaw and Brussels over the independence of the judiciary. In 2018, the European Court of Justice (ECJ) ruled that the new system of selecting judges in Poland infringed EU law. The judges of the Constitutional Court were appointed by the ruling Law and Justice (PiS) party.
The ruling has – predictably – been seized upon by far-right politicians across the EU. In France, Eric Zemmour and Marine Le Pen have argued for emulating the Polish court’s ruling. In Hungary, prime minister Viktor Orban has offered his support to the PiS government.
But it is not just the far right, nor captured judiciaries. Michel Barnier, who is running for the presidential nomination of the centre-right Republican party in France, similarly wants France to opt out from some rulings of the ECJ. A partial precedent for the Polish ruling was set in Germany in 2020, when the Karlsruhe constitutional court ruled that German law was supreme over European legislation in some cases. (The ruling was later reversed, but not before Brussels launched a legal case against Germany for “undermining the primacy of EU law”.)
The EU will attempt to fight back. It might attempt to hold back about €36bn in cash from the bloc’s recovery fund earmarked for Poland. It could also initiate Article 7 procedures, the clause in EU law allowing certain rights to be stripped from member states, though such action would likely face opposition from Poland’s staunch ally Hungary. The two countries, facing similar criticisms from Brussels over the rule of law, usually back each other and block or water down EU sanctions using their veto.
Poland will not formally seek to leave the EU. Its GDP has more than doubled since it joined in 2004. Its population overwhelmingly support EU membership: in one survey this year, over 60 per cent of Poles polled said that Poland should remain in the bloc, while just 17 per cent said it should leave. Tens of thousands of pro-Europeans marched against the government in demonstrations after the latest ruling.
The constitutional court’s ruling could, however, mark the beginning of a long process of erosion of the EU’s single legal order. The bloc might not formally disintegrate – its Parliament will continue to sit, the ECJ will issue rulings, member states will send commissioners to Brussels – but it could be increasingly gutted of the substance of European integration. Gwendoline Delbos-Corfield, a French Green MEP, told me a year ago that her fear is that the EU becomes undermined from within as EU law ceases to be applied consistently.
If the ruling were to be repeated in other member states, the EU could find itself in a situation where although EU institutions still formally exist, they are rid of most substance, marking in effect the end of European integration, Castillo-Ortiz said.
[See also: How Viktor Orbán’s deepening power in Hungary is breaking the EU]
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