‘If there was a referendum over the Vistula River today regarding membership in the Community, the advocates thereof would win with vast majority. But if Brussels were to stop financial transfers to Warsaw, these proportions could change. European decision-makers are aware of this,’ says Professor Andrew TETTENBORN.
The reforms of justice constitute an internal matter of Poland. Notwithstanding the opinion about changes in this area, as introduced in Warsaw, it is upon Polish authorities exclusively how the judiciary will be organised. This is not a matter of the European Union. If we have a look at the EU Treaties, we can see they contain nothing at all about the reforms of the judiciary in particular EU Member States. Brussels has no competences in this area. European Treaties do not contain provisions about the transfer of competences in this area from Member States onto the EU.
Nevertheless, there has been a conflict about the rule of law between Brussels and Warsaw for several years. However, answers to the question about who is right in this dispute are to be sought rather in the political than legal domain.
With respect to logic, Mateusz Morawiecki has better arguments at hand. Polish constitution was adopted in 1997, whereas Poland joined the EU in 2004. The conclusion is clear: membership in the Community was possible as it was in compliance with the constitution. This alone indicates that Polish Basic Law has the priority before European law. Indeed, after Poland’s accession to the EU, no amendments were made to the constitution to order this state of affairs in a different hierarchy.
Still, lawyers representing the European Union do not acknowledge such arguments. For a simple reason: since the time of their studies, they are made to believe the European Law has a higher hierarchy than the national law. They have the task to make sure the EU legislation must survive. They treat it as a certain European Bible.
The EU is an organisation that is unique in its nature, not subject to the rules of law as generally understood. It treats the assumption of the EU law being superior to national laws as a dogma that must be simply accepted. However, this is just Brussel’s bluff. With its ruling stating the superiority of national constitution over the European law, Poland’s Constitutional Tribunal said ‘check’.
And it was not the only one. In May 2020 and in April 2021, German Federal Constitutional Court clearly stated that it will not necessarily accept all CJEU’s rulings. This is a major problem for Brussels because the Germany is at the forefront of unification of EU Member States. Another issue is that European institutions will not be as rigorous with respect to other EU Member States as they are to Poland.
Why such a different approach? Principally for political reasons. Brussels is dominated by politicians with liberal-leftist views who do whatever they can to supress conservative views represented by Poland’s Law and Justice (PiS) party.
Measures taken by CJEU are to undermine PiS government in Poland. But not that alone. This is also a step towards federalisation of the EU. Brussels has long followed the federalisation agenda. It has the ambition to create the United States of Europe, and everyone trying to torpedo this plan is treated as an enemy. The weapon here is the money; for this reason, one can so often hear voices saying that one should suspend funds for Poland, as due within the framework of EU’s structural policy or the Recovery and Resilience Plan. At this moment, however, the EU reaches its limits.
At present, Poland is one of the most pro-European countries across Europe. If there was a referendum over the Vistula River today regarding membership in the Community, the advocates thereof would win with vast majority. But if Brussels were to stop financial transfers to Warsaw, these proportions could change. Perhaps the advocates of common Europe would still have the majority, but not so vast as at present. European decision-makers are aware of this; therefore, it is probable they will withdraw from such the present course oriented at confrontation.
So far, Brussels’ officials and lawyers have behaved like Roman legions who received an order from Rome to subordinate further provinces and pursued it without doubt. Nowadays, however, this method of procedure is at its end, also due to the decision made by the Polish Constitutional Tribunal. The EU cannot act like Roman legions, as this way it will lead the Union to its fall.
The days when Brussels could simply impose certain actions on the Member States are quickly coming to an end. In a few years, the very nature of Brussels and its operating style will change.