The EU will regret its legal onslaught against Poland

When European governments openly disobey courts, ears prick up. When two courts simultaneously contradict each other on the same day and descend into an unseemly shouting-match, all bets are off. Welcome to the mad world of Poland’s legal relations with the EU.

The ruling Law and Justice Party in Poland, PiS, is cordially detested in Brussels. Its policies, which are quite popular locally, are anathema to the liberal and cosmopolitan Euro-nomenklatura. Back in 2017, PiS introduced technical changes to the terms of appointment of the Polish higher judiciary, including a disciplinary chamber with political connections armed with powers in certain cases to sanction judges. 

The measures were aimed at halting corruption. But these changes were seen by the opposition as an attempt to muzzle the courts. Inevitably, Brussels enthusiastically took up the opposition’s case. 

Although you might have thought this was not an EU matter, Brussels said the new measures were illegal. It suggested that the rules deprived Polish litigants who were seeking to rely on EU law access to an impartial tribunal to apply them. 

Last year, it took action in the European Court of Justice. On Wednesday, the court issued an emergency order telling Poland to suspend its measures immediately; a day later, it formally declared them to be illegal.

Warsaw countered. On Wednesday, the Polish Constitutional Tribunal insisted that under the Polish constitution the EU court had no business interfering in the make-up of the Polish judiciary. It essentially declared that any European judgment to the contrary needed to be ignored. 

Meanwhile, still pending before the Polish courts is a claim by the PiS government for a wide-ranging decision that no EU law of any kind can prevail over the provisions of the Polish constitution. Judgment on this even more explosive claim was due to have been given on Thursday, but is now expected in about three weeks. It is overwhelmingly likely to go the government’s way.

The PiS government certainly isn’t everyone’s cup of tea. There are reasons to be sceptical about how independent its courts are: at one point in Wednesday’s proceedings a lawyer arguing for the opposition was testily asked: 

“So are you going to tell us how we should resolve our conflicts with the EU Court or are you going to give us more lofty unpractical intellectual padding?'

But this isn’t the point. Much more important is what all this says about the EU.

First, there is a distinctly political air about this whole EU onslaught; a country’s judicial appointments are, after all, an area which one might have thought should be dealt with by its national democratic process. Is it really any business of the EU's to meddle in such affairs? 

There have been prim claims that this is just another even-handed exercise in law enforcement by Brussels. Yet it’s hard not to think the Commission’s real aim is to fire a shot across the bows of a number of maverick eastern European states such as Poland, Hungary and Romania, whose governments hold obstinately conservative views.

What's more, the European court through which Brussels acted — while perhaps not partisan in quite the same way as the Polish courts — is without doubt politically savvy. It is surely inclined to advance the values of the elite in Brussels and European unification. Its recent decision represents a clear intention to mould the law in favour of extending the powers of EU intervention.

Secondly, assuming Polish intransigence continues, what then? The EU is in something of a bind.

If it does nothing, the rot will spread. Hungary is, after all, at least as awkward as Poland, if not more so, and may well kick over the traces in the same way. 

But the keystone of the EU's power over member states — the supremacy of its law as interpreted by the Court of Justice over that of any member State, accepted as beyond question since the 1960s — will begin to crumble. It won't be long before other states question the legitimacy of court judgments: indeed, Germany has already done, to the consternation of those in Brussels.

Theoretically Brussels could get the Court of Justice to fine Poland for disobedience to its orders. But this raises its own problems. Poland, having denied the right of the EU to interfere in the first place, would simply refuse to pay. 

Turning off the money tap is also a possibility: Poland gets roughly €13 billion (£11 billion) net per year from the EU, and has yet to receive any EU Covid recovery payments. However, this again could backfire. Poland’s population is currently one of the most Europhile of the bloc, with over 70 per cent of people pro-EU. Serious sanctions by the EU could quickly dent that support, and the PiS itself is inoculated with a healthy dose of Euroscepticism. 

The last thing the EU needs after the Brexit debacle is an ill-tempered Polexit, now being openly discussed, with the loss of prestige that would involve.

There would, however, be one possible way out for the EU. The demise of PiS and its replacement at the next election in 2023 by a leftish Europhile coalition in Warsaw would solve nearly all its problems: and though still popular, PiS has been steadily dropping in the polls. 

It might be worth putting a punt on Brussels being aware of this, and deciding that its least worst option is to do nothing much apart from huffing and puffing at Warsaw for the next couple of years, in the hope that the Polish electorate will pull its chestnuts out of the fire.

Meanwhile, however, we may not have heard the last of the EU making difficulties for itself by interfering in its members’ internal affairs and incautiously starting fights without first making sure it can win them.

On Thursday, before the ink was dry on the Polish judgment that caused all the difficulties, the European Commission blithely announced it was — wait for it — starting more legal proceedings over internal social policies, this time against both Poland and Hungary. The subject? Polish municipalities that have expressed views on LGBT rights, and Hungary’s attitudes to LGBT education. 

If the EU is incapable of learning from its earlier errors, as these cases seem to show, I have a sinking feeling you may find yourself reading something like this article in Coffee House next year.