Scramble to stop ‘de facto Polexit’

France and Germany have thrown their weight behind the European Commission as it prepares to face down a challenge to the European Union’s legal order from Poland.

It came after the right-wing government of prime minister Mateusz Morawiecki escalated a dispute over the rule of law to fresh heights by asking its constitutional court to rule on whether EU law supersedes that of Poland.

Thursday’s ruling by the court – which opposition parties and NGOs say has been brought under the political control of the ruling Law and Justice (PiS) party – backed the government’s contention that it does not have to observe rulings of the European Court of Justice that suggest it interfered with judicial independence.

France’s Europe minister Clement Beaune described the ruling as a political provocation and warned that the government’s actions were contrary to the interests of Poland’s pro-EU majority.

“When you join a club you sign a contract that is called a treaty, which was ratified by referendum in Poland. This was the choice of the Polish people,” Mr Beaune said.

Polish opposition parties accused the government of attempting to pull the country out of the EU and called for mass protests.

The ruling is “the de facto path to Polexit”, Borys Budka of the centre-right Civic Platform party wrote on Twitter. “It is impossible to be a member of the European Union without following the basic principles on which the community is based.”

Attention has turned to what tools the EU has left to enforce its legal order in the face of Polish recalcitrance, despite successive legal infringement procedures and orders.

The commission has held back €57 billion due for Poland in grants and loans under the EU’s Covid economic stimulus fund as a result of concerns about the observance of the rule of law, and the escalation of the standoff has made payment difficult to imagine.

Some members of the European Parliament have called for the commission to go further and withhold budget payments to Poland, using a new and rule-of-law safeguard rule for EU cash.

“The only language Warsaw understands is freezing money,” German Green MEP Daniel Freund told media, pointing out that Polish regions had reversed a policy of declaring “LGBT-free zones” after the EU responded by freezing millions of euro of funding to local municipalities.

The executive has already asked the EU’s top court to impose daily fines on the country for every day that it ignores an order to suspend a controversial chamber set up to discipline judges, which could be subtracted from EU funds. The development may also have implications for whether Poland can count on fellow member states to execute European arrest warrants issued by its courts.

The Irish Supreme Court asked the European Court of Justice earlier this year to clarify whether such arrest warrants from Poland should be honoured, expressing concerns about the rule of law in the country and whether defendants can be guaranteed a fair trial.

The commission vowed to use all powers at its disposal to protect the EU’s legal order, as experts warned that the single market relies on legal coherence between its members through the principle that EU rulings have the final say.

The executive’s legal services will examine the Polish ruling and “next steps” will then be taken, commission president Ursula von der Leyen said in a statement. “I am deeply concerned by yesterday’s ruling of the Polish Constitutional Tribunal,” she said.

“EU citizens as well as companies doing business in Poland need the legal certainty that EU rules, including rulings of the European Court of Justice, are fully applied in Poland.”

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