Explainer

How Poland Ended Up Defying EU Law

A timeline of the last six years and a look at the EU’s options.

Constitutional Tribunal Warsaw Poland
Constitutional Tribunal in Warsaw, Poland, November 3, 2012 (Lukas Plewnia)

Poland has escalated its rule-of-law dispute with the rest of the European Union by arguing its own laws supersede the EU’s, and indeed some EU laws are incompatible with the Polish Constitution.

The decision of the Constitutional Tribunal caps six years of legal battle that began when Poland’s nationalist Law and Justice returned to power in 2015.

Here’s a timeline of events and a look at what could happen next.

Timeline

  • November 2015: The new Law and Justice-led majority in parliament overturns the last five Constitutional Tribunal appointments made by the previous legislature in an attempt to stack the court. The tribunal accepts two of the appointments, but considers the other three unlawful (due to when the original five were made).
  • December 2015: Parliament passed a number of reforms limiting the tribunal’s autonomy. It must hear cases in chronological order rather than at its discretion. A quorum of thirteen out of fifteen justices is introduced. Verdicts must be supported by two-thirds of justices instead of a simple majority.
  • January 2016: The EU launches its first-ever rule-of-law probe into Poland’s judicial reforms.
  • March 2016: The Constitutional Tribunal rejects the reforms passed by parliament in December. The government ignores the decision.
  • March 2016: Law and Justice merges the positions of justice minister and prosecutor-general, and nominates another pro-government justice to the Constitutional Tribunal.
  • June 2016: The European Commission calls Law and Justice’s judicial reforms anti-democratic.
  • December 2016: Constitutional Tribunal president Andrzej Rzepliński’s term expires. President Andrzej Duda nominates Julia Przyłębska as his successor.
  • July 2017: Parliament gives itself the power to appoint members of the National Judicial Council, which appoints all lower-level judges. It immediately fires fifteen of the council’s 25 members. A second bill creates a disciplinary chamber in the Supreme Court (separate from the Constitutional Tribunal), whose members will be appointed by the government-controlled National Judicial Council. A third gives the justice minister the power to unilaterally replace court presidents.
  • July 2017: President Duda unexpectedly vetoes the reform of the National Judicial Council, but signs the other two laws.
  • July 2017: The European Commission launches a formal infringement procedure, which could result in Poland losing its voting rights in EU councils.
  • September 2017: The first court presidents are dismissed by the justice minister.
  • December 2017: Lawmakers accept Duda’s proposed amendment to the overhaul of the National Judicial Council, which gives him the unilateral power to make appointments in case parliament deadlocks. A separate law lowers the retirement age for Supreme Court justices from 70 to 65, which would force its president, and Law and Justice critic, Małgorzata Gesdorf, to immediately resign.
  • March 2018: Parliament installs a new National Council of the Judiciary.
  • July 2018: Parliament empowers Duda to fire Gesdorf, who has refused to step down. The European Court of Justice rules that other EU countries can refuse extraditions to Poland if they believe suspects may not receive a fair trial there.
  • November 2018: The European Court of Justice forces Poland to reinstate 22 Supreme Court justices it had forced into retirement. Duda complies the following month.
  • January 2020: Parliament bars judges from engaging in “political activity,” which includes calling the legitimacy of other judges into question. The disciplinary chamber of the Supreme Court initiates proceedings against judges who have been critical of the government.
  • February 2020: Germany becomes the first EU country to refuse an extradition request from Poland.
  • April 2020: The European Court of Justice suspends the Polish disciplinary chamber while it mulls its legality. The European Commission starts another infringement procedure.
  • May 2020: Małgorzata Manowska succeeds Gesdorf as president of the Supreme Court.
  • July 2021: The European Court of Justice rules that the disciplinary chamber is incompatible with EU law.
  • October 2021: Poland’s Constitutional Tribunal rules that the country’s Constitution takes precedence over EU laws.

Poland is not alone

Poland is not the only country to have called the primacy of EU law into question. Germany’s Constitutional Court ruled last year that the European Central Bank’s debt-buying program would be illegal under German law unless the central bank could prove the purchases were justified. That ruling defied an earlier decision by the European court.

The European Commission has started an infringement procedure against Germany as well.

What can the EU do?

The European Council — the leaders of the 27 member states — has been unable to sanction Poland. Doing so would require unanimity from the remaining 26, and Hungary’s Viktor Orbán protect his friends in Warsaw.

The European Parliament has passed resolution after resolution condemning Poland, but they are not enforceable.

The European Commission has withheld €36 billion in support from the EU’s coronavirus recovery program and is under pressure to withhold an additional €121 billion in regional development funds so long as Poland doesn’t comply.

Is Poland likely to leave the EU?

No. It is the single biggest recipient of EU funds, including billions in yearly agricultural subsidies and regional development funds. Since it joined the EU in 2004, Poland has received a net €127 billion from other countries, more than any other member state.

70 percent of Polish imports come from other EU countries. 80 percent of exports go to the rest of the EU.

Polls consistently find between 80 and 90 percent support for EU membership in Poland.

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