By giving the Polish constitution priority over European law, the conservative government in Warsaw is pushing for a confrontation with the European Commission. ‘We are going to war against the Brussels occupier!’
‘Zostajemy!’ The cry – Polish for ‘We stay’ – has been ringing through Poland for days. Fears of an exit from the European Union are high after a controversial ruling by the constitutional court in Warsaw. It ruled last week that the Polish constitution takes precedence over European law. According to critics, the ruling is an outright undermining of the European legal order and has opened the door wide to a ‘polexit’.
On Sunday, tens of thousands of citizens across the country took to the streets to express their concerns. They capitulated the conservative government of Prime Minister Mateusz Morawiecki, which undoubtedly spearheaded the legal offensive against the European Cenacles in Brussels. The constitutional court eats out of the hands of the ruling Law and Justice Party (PiS), which has packed the institution with puppets.
What is going on in Poland?
The Constitutional Court in Warsaw recently ruled that the Polish constitution takes precedence over European law. This leaves the country with one leg out of the European legal order. The opposition accuses the nationalist government of leading a polexit, a departure from the EU.
Is leaving the EU the goal?
Prime Minister Mateusz Morawiecki insists that he wants to keep his country in the EU and calls the rumors of a polexit ‘fake news’. But he does want to pry himself out of the European carcan, which he says is ‘colonialist’.
How do the Poles view the conflict?
A vast majority of the population is in favor of EU membership. And the opposition is also storming against the ruling nationalists. The question is how strong they will still be if Europe suspends the flow of money.
The demonstrations, with at least 100,000 demonstrators showing up in Warsaw alone, came after an appeal from Donald Tusk, the former European president. He was prime minister of Poland between 2007 and 2014 and returned home after his Brussels career to pick up the thread and beat the conservatives. Last summer, he was inaugurated as chairman of the Civic Platform, the opposition party he founded in 2001.
Speaking at the Warsaw rally, Tusk said it is time to “sound the alarm because the ruling party has decided to remove Poland from the EU”. According to Tusk, the demarche is intended to “violate democratic rules with impunity”. Tellingly, the news on the public broadcaster TVP, which has been converted into a propaganda channel for the PiS, described the demonstrations as ‘protests against the Polish constitution’. Read: being unpatriotic.
Prime Minister Morawiecki accused the opposition of spreading ‘fake news’ and denied that he is inciting a polexit. “Our dear opposition is trying to insinuate that we want to weaken the Union by leaving the EU,” he said. ‘That is a lie.’ The demonstrations seemed to make little impression on Morawiecki, because on Tuesday he published the controversial judgment in the official gazette.
By ratifying the ruling, Poland is heading for an ultimate showdown with Brussels, which pales in comparison to recent clashes over the rule of law and migration. The European Commission said it was preparing a counter-move and Josep Borrell, the European foreign affairs chief, announced a ‘firm response’. “When you are a member of a club you have to abide by the rules of the club,” he said. ‘And the most important rule of the club is that European law takes precedence over national law.’
According to Morawiecki and co, the shoe pinches precisely in that primacy of Europe. The ruling conservatives have been lashing out at what they see as the creeping erosion of Polish sovereignty by the EU for years. Apart from the European Commission, they are targeting the European Court of Justice. The institution in Luxembourg has repeatedly reprimanded the PiS government for undermining the rule of law, especially the breakdown of the judiciary.
Our dear opposition is trying to insinuate that we want to weaken the Union by leaving the EU.
By prioritizing the Polish constitution and its own legislation over European law, Morawiecki is further jeopardizing the independence of the judiciary. In the lower courts in particular, many independent judges are still working, who use European law as a guideline for their judgments. The new judgment is, among other things, intended to keep them in line. A court in Krakow has already said it does not care about the ruling of the constitutional court.
According to the PiS, the interventions are necessary for the ‘urgent democratization’ of the Polish legal system. More than 30 years after the fall of the Iron Curtain, the party argues that the judiciary is still a communist bastion that, like a kind of state within the state, constantly tries to thwart the policies of the conservative government. It is illustrative of the somewhat paranoid management style of Jaroslaw Kaczynski, the boss and ideologue of the PiS.
on the knees
Polish conservatives have been complaining about ‘European colonialism’ for some time. “Brussels is sending its governors to bring us to our knees,” Marek Suski, a close confidant of Morawiecki, said last month. ‘We are going to war against the Brussels occupier.’ Earlier this year, Education Minister Przemyslaw Czarnek announced that schoolchildren would be taught that the EU is ‘an illegitimate institution’.
With Tusk’s return to national politics, PiS can also put a face on European meddling. On Twitter, MP Anna Kwiecien spoke a few weeks ago of a “clear German plan” to “lead Poland by Chief Tusk”. His past as President of the European Council threatens to turn against Tusk. The PiS propaganda machine will constantly portray him as a puppet of Brussels.
Tusk plans to capitalize on the strong support in Poland for EU membership. With the threat of a polexit, the opposition has an important weapon in their hands. It explains why the PiS leaders put such energy into denial that they are pushing for an exit from the EU. After the PiS faction leader recently praised the British for saying goodbye to the ‘Brussels dictatorship’, he was quickly forced to retract his words.
Parliamentary elections are not on the agenda until 2023, although there are rumors that PiS chairman Kaczynski – the strong man in Warsaw politics – is pushing for early elections. In the polls, PiS is still well ahead with 38 percent of the vote. But the Civic Platform has secured a solid second place with 26 percent. After Tusk took office as chairman in July, the party gained almost 10 percentage points.
A signal that conservatives are concerned came last Wednesday. Then Kaczynski announced that he would resign early next year as Deputy Prime Minister responsible for National Security and Defence, a job in which he did not do much. He says he wants to focus fully on leading the party. In doing so, he once again chooses his favorite place in the political wings, from which he pulls the strings.
With the threat of a polexit, the opposition has an important weapon in their hands.
The Polish government is often mentioned in the same breath as other nationalist regimes in Central and Eastern Europe, led by Viktor Orbán’s Hungary. But unlike Orbán, PiS does not have an absolute majority in parliament. And so the party is dependent on the support of a few small parties. However, that front crumbled this summer when Morawiecki fired the deputy prime minister of the coalition partner Accord.
The government crisis came on the eve of the adoption of a controversial media law. This stipulates that only European companies can control Polish media groups. The law was intended to silence critical broadcaster TVN, owned by American Discovery. Morawiecki got his way by bringing in a tiny opposition party. “Parliament, glued to the mud of corruption and blackmail, is perishing before our very eyes,” Tusk said.
Scheming with dwarf parties
The government will increasingly have to resort to all kinds of scheming with dwarf parties to keep its head above water. That is why it can be useful to seek the confrontation with the EU as a lightning rod. Former Foreign Minister Witold Waszczykowski, who is sitting in the European Parliament today, recently equated European pressure on Warsaw with ‘a war to overthrow the Polish government’.
The question is to what extent Morawiecki and co. shooting themselves in the foot by challenging Europe. Because one of the options for the European Commission is to block the flow of money to Poland. The country is in any case the largest net recipient of the 27 Member States and can count on €121 billion in regional aid over the next six years. PiS used that money for all kinds of subsidies and benefits to keep the supporters happy.
An additional 36 billion euros will be added in the context of the corona recovery plan. Brussels refuses to release that amount for the time being in order to force the Polish government to respect the rule of law. Together with Hungary, Poland went to the European Court of Justice to challenge the withholding of the funds. Ironically, they sought support from the same institution that Warsaw portrayed as a symbol of the unbridled European expansionism.