A ruling by Poland’s top court questioning the primacy of EU law could trigger severe financial and political penalties from Brussels, but it won’t cause Warsaw to exit the bloc. Poland’s Constitutional Tribunal ruled on Oct. 7 that the Court of Justice of the European Union (CJEU) does not have the power to interfere with the Polish government’s decisions on the judiciary. It also said that the Polish constitution takes precedence over EU laws on issues not explicitly delegated by member states to the bloc, such as the internal organization of the judiciary. 

The ruling alone does not immediately change Poland’s situation in the EU; Warsaw will have room to decide when, how and if to challenge EU decisions and rules

Poland’s Constitutional Tribunal’s ruling marks a sharp escalation of EU-Poland disputes because the Polish court is challenging two of the pillars of the EU legal order: the supremacy of EU law over national law and the supremacy of the CJEU over national courts. However, the actual violation of EU rules will happen only if the Polish government uses the ruling to ignore decisions by the CJEU or the European Commission. Warsaw could use the threat of ignoring EU law as leverage in its negotiations with the European Union over issues ranging from Poland’s controversial judiciary reforms to the approval of EU grants and loans to help Warsaw cope with the COVID-19 pandemic. 

  • The Constitutional Tribunal’s ruling will only enter into force after the Polish government publishes it in the official journal, which gives Warsaw some time to plan its next steps. 
  • Over the decades, constitutional courts in countries such as Germany and Italy have also questioned the supremacy of EU law over national law. However, these cases did not create any meaningful problems because Berlin and Rome chose to comply with EU rules and CJEU rulings despite the position of their own courts. 

In the coming weeks, the European Commission could freeze funding and try to politically isolate Poland, but any decisions on the country’s EU membership will ultimately be in Warsaw’s hands.

In retaliation for Warsaw’s challenges of EU principles, the European Commission could

  1. suspend the delivery of billions of euros in cohesion and agricultural funds slated for Poland in the EU budget. (€ 72.2 billion in EU cohesion funds and € 34.5 billion for agriculture)
  2. continue to delay the approval of Warsaw’s plans to spend billions of euros in funds from the European Union’s COVID-19 recovery fund (€ 23.9 billion in grants and € 12.1 billion in loans)
  3. ask to suspend Warsaw’s voting rights in the European Council , though this would require unanimous support from the remaining member states (and some Central and Eastern European governments may block such a request in solidarity with Poland).

But while each of these actions would be painful for Poland, the European Commission does not have the power to expel Warsaw from the bloc. According to the EU treaties, countries can leave the bloc if they choose to , but the European Union cannot oust any member states. As a result, Poland’s exit from the bloc would only happen if Warsaw’s political and economic isolation becomes so severe that the Polish government decides to leave on its own accord. The freezing of EU funding would bring Poland closer to such a scenario, though it would take several years for the economic pain to materialize. Moreover, most Polish voters support EU membership, meaning Poland’s next general election (which is scheduled for mid-2023) could yield a more pro-EU government that reduces the chances for a so-called "Polexit".

Add new comment