Morawiecki

Poland has challenged the rule of law of the European Union (EU) by refusing to obligate the European Court of Justice (ECJ) decisions regarding judicial reforms. As stressed by the European Commission President, Ursula von der Leyen, Poland’s refusal to the EU’s foundation has been considered a ‘direct challenge’ to the unity of the EU legal order. The confrontation made by Poland is a straightforward question on the EU rule of law legitimacy. Flathman (1993) defines legitimacy as “a consent that allows (people) to transfer some or all of their authority to others, to authorize others to act on their behalf.” Within the EU, member states accept the EU authority since some policies are formulated at the EU level and implemented into the national law.

 

Consent is critical in European law since it becomes the legitimate obligation for domestic actors to their commitments in the EU. The legitimacy of the European law is based on Article 2 of the Treaty on EU, which correlates with monism theory. Kelsen (1992) defines monism as “the view of international law and the various state legal systems taken together constitute a unified normative system.” As stated in the monism theory, the EU law has supremacy over national law as some policies are directly applicable and legally binding to the national rule. The European Law integrates with the national law; thus, member states must respect EU law within their national legal system. 

 

It should note that the direct effect of EU law over national law will only prevail if the EU law is incorporated and applicable on a national scale. Even if the law can be directly applicable, it does not mean it will always be directly effective for every member state. The European Court of Justice (ECJ), which consists of judges from all member states, is created to ensure the full application and same interpretation of the European law in national law. Therefore, any conflicts, misinterpretation, and violations of EU law are part of the ECJ for final decision. 

 

The ECJ shared that Poland has violated the rule of law values by appointing non-independent judges, which raised conflict between the EU and Poland’s ruling nationalists. The dispute jeopardizes the rule of law and EU integration and even further Poland from the EU. Nonetheless, The Poland Exit (Polexit) will not happen soon as almost ninety percent of Poles and the government favor Poland’s membership in the EU. Then, what is at stake?

 

Poland’s Conflict of Interest and the EU Law Supremacy 

EU integration aims to build trust for all member states and promote the common EU’s values such as the rule of law and democracy. The rule of law makes the EU unite and, at the same time, restricts member states from acting according to the bloc’s shared values. The ongoing dispute between the EU and the Polish government was raised in 2015 when Poland’s Law and Justice (PiS) took power and planned to reform the judiciary in Poland. 

 

The Polish Constitutional Tribunal (PCT), a body that adjudicates domestic constitution and international agreement compliance, asked the Prime Minister of Poland, Mateusz Morawiecki, to verdict Poland’s constitutional tribunal. The PCT, dominated by anti-Europe parties Law and Justice Party (PiS), wanted Poland judges to use national law rather than the EU law regarding judiciary reform. Poland disagrees, especially with Article 1 and 4 in the EU Treaty regarding EU supremacy over Poland law, which is viewed as degrading Poland’s sovereignty.

 

Moreover, Morawiecki said that the highest law in the EU is the country’s constitution, and he stressed the difference in Poland’s judiciary system would not affect the EU. According to the monism theory, the EU law is directly applicable in national law; therefore, the policies and rules formulated are all binding to member states. Poland expressed a violation of the idea that the EU law has precedence over national law. The contradictions of national and EU values are also backfired to the EU integration and law authority. 

 

Back to domestic politics, Poland’s Law and Justice (PiS), led by Jarosław Kaczyński, had been at odds with the EU, particularly on judicial independence laws within the EU. Kaczyński is always skeptical and even creates a joint declaration with other right parties to ‘protect’ Poland’s sovereignty. For protecting this ‘sovereignty,’ Kaczynski pressed for judicial independence. Judicial independence is a critical foundation for the rule of law as it must be free of influence and functions to protect the public interest. 

 

The problem lies in the different perspectives on the judgment of Poland and the EU. Poland wanted to reform as it wished to the judges to be free from corruption, which in fact, the National Council of the Judiciary (NCJ) was dominated by the PiS supporter. The EU believed that the PiS only install and choose the judge who is politically in favor and support the PiS. The situation raised concern on politically motivated of Poland, particularly the PiS, for reforming the judicial for their interests. Furthermore,  The Council of Europe’s Group of States against Corruption (GRECO) published a report regarding the assessment of judicial reforms in the Polish government. The report showed a deep concern for judges’ independence as the law for disciplining judges creates a vulnerable state for judges from any political influence. 

 

The problem in Poland is not a misinterpretation but a mere political motivation to have more control in the judiciary reforms. In addition, the report also found that the Polish government has trouble with its integrity issue in the principal executive functions. For Poland, the EU has no right to intervene in the national constitution. In contrast, the EU laws are directly effective and enforceable, including in the national court. The ECJ has every right to uphold and defend the EU’s values and treaty and observe the conflicts and disputes within the EU member states.

 

Poland could not choose what law to agree or disagree.

The violation shows that some elite politicians, PiS and Morawiecki, want to gain more control over the domestic law system for their interests rather than binding to the EU. The EU can not stand still, as the EU authority and integration are at risk. The EU has imposed financial sanctions on Poland up to USD1,2 million, which Poland refuses to pay. The economic sanction is just the first step to worsen Poland if it violates the EU laws and values.

 

The Polish government needs to respect the EU rules. The EU Commission, on the other hand, will secure the bloc’s integration. The membership does not mean the EU has degraded their members’ sovereignty, as PCT stated, because all member states remain sovereign and independent. Poland has signed an agreement with the EU, and then they already know the consequence of the rights they have enjoyed within the EU. Poland’s stubbornness will only cost more for the economy and political credibility within the EU. As Poland did not want to exit the EU, then it must comply with the EU law. Poland could not decide which treaty or law to accept and other laws to against. If negotiation only would not make Poland back off, further economic sanction and political isolation will.