Will Poland's Showdown With the EU Be the Next Brexit?

The Polish government, long a headache for Brussels, debates whether it needs to treat EU law as binding.

Those political leaders that go head to head with the European Union usually do so, as the Germans would say “Mit Pauken und Trompeten” (“with timpanis and trumpets”), meaning pompously and loudly. The U.K.'s Brexit movement made waves beyond its own borders, with Brexit Party leader Nigel Farage garnering international attention. Hungarian Prime Minister Viktor Orbán is able to tout his dream of a new conservative Christian era on Tucker Carlson, being cheered on by American conservatives whose knowledge of Hungary is often somewhat limited. 

Poland is having its own battle with EU leadership right now, over the supremacy of EU law over Polish law. While it’s taking a very different form, it could trigger a judicial chain reaction that touches at the heart of the European Union.

First, some background on Prime Minister Mateusz Morawiecki’s government: It’s a liberal democrat’s nightmare and promotes policies that are often counter to the prevailing sentiments of the EU.

 It is heavy-handed on opening the spending tabs for welfare programs yet also socially conservative. Several Polish municipalities have declared themselves “LGBT ideology-free zones,” banning gatherings such as pride marches. In response, the European Union declared itself an “LGBT freedom zone.” Poland’s government has also been criticized for implementing very stringent requirements on abortion, which forces women to seek access to it across European borders.

However, the biggest issue between Poland and Brussels is not Poland’s increasing government expenditures, its Catholic-infused social conservatism, or even its policy of avoiding taking in Muslim refugees (the government says it takes in Ukrainian migrants to do its part), but its institutional reforms. Convinced by the notion that Poland is undermined by a deep state of bureaucrats and judges of previous governments, the ruling party has made sweeping changes to the structure and appointment procedure of judges in the country. These judicial reforms do not allow judges to refer rulings to the European Court of Justice. Adding to that, the new “disciplinary regime” allows for disqualifying ordinary judges based on their rulings, and retires judges appointed by previous governments to replace them by those friendly to the party’s reforms.

Prime Minister Morawiecki’s ruling Law and Justice Party (PiS) claims that the reforms allow for better functioning of government and fight the institutional remains of communist rule, but they were criticized by the European Court of Justice (ECJ) in a ruling back in July: “[The law] could thus be used for the purposes of political control of judicial decisions or of pressure on judges in order to influence their decisions and undermine the independence of the courts concerned.” 

The European Court of Justice is the EU's highest court, based in Luxembourg. Each member state appoints one judge, meaning it is composed of 27 judges in total. The ECJ rules on the implementation of European rules, as well as the “respect of the fundamental rights of the European Union.” Individuals who feel that their rights have not been respected by the courts in their member state can bring a case before the court.

In response to the ECJ’s ruling, Poland's government is now asking its own constitutional court whether or not EU law can even trump the Polish constitution—a question that could quickly end up in a dissenting view, given the judicial changes the country has made over the past year. The basic understanding of the European Union, which is not a country, is that member states voluntarily respect the supremacy of EU law by joining the European Union. If they wouldn’t, members could choose which rules they deem worthy of applying domestically.

The EU disposes of no police or army that could cross into a different member state and enforce its judicial rulings. Members are present out of their own volition and can make the choice to withdraw, as the UK did with Brexit. If Poland were to decide that EU rules don’t apply to it, it would “Polexit” without announcing it.

The EU has now countered this move by withholding EU funding to Poland, amounting currently to $27 billion in EU grants and $40 billion in cheap loans. In 2018, Poland was the EU’s largest net recipient, meaning it got $13 billion more in EU funds than it paid in. Germany is the EU’s most significant net contributor, paying in $20 billion more than it took out.

The ability to sanction member states through withholding payments is a new tool that the EU only acquired recently. Brussels does have another mechanism of sanctioning a member state by stripping it of its voting rights in the European Council, yet this is dependent on all countries supporting it, which in the case of Poland has been consistently opposed by Hungary.

The Polish battle against the EU currently takes place both in the executive and the courts, and will in time be as big of a headache as Brexit had been in the past few years.