The Constitution of Poland bursts the European legal order: Part of the treaties are incompatible with the Magna Charter

The European Union is not (already) a project, it is not (only) an idea and is not, of course, a state or a federation of them. The EU is a balance built on l

The Constitution of Poland bursts the European legal order: Part of the treaties are incompatible with the Magna Charter

The European Union is not (already) a project, it is not (only) an idea and is not, of course, a state or a federation of them. The EU is a balance built on legal premises and legal fundamentals and the Constitutional Court of Poland has just armed strongly against one of its essential pillars. The High Court has ruled this Thursday, in a case initiated at the instances of the Government, which Articles 1 and 19 of the Treaty of the European Union are incompatible with the Polish Constitution, as the Republic "can not be a sovereign and democratic State" if Clear that the EU has the last word in those spheres whose competences do not correspond to it.

The stick is monumental and a nightmare for Brussels. A few months ago there was an important scare when the Constitutional German, Kalrsruhe, ordered the president of the country, Frank-Walter Steinmeier, who did not sign a legislation approved by two thirds of the German Parliament and by the Senate that ratified the approval of the so-called "decision of own resources "of the EU. It is a technical issue that has the approval of the Commission, the European Parliament and the Governments of the 27, including Berlin, but that it should be ratified by all national chambers. The German court wanted to have the last word and questioned the decision capacity of the EU Court of Justice, who was accused of extracting in its functions.

The background problem is who has the last word. Community, European, cousin on the national law. There can not be an EU as the current one if that axiom is not respected. There may be other things but not the union we all know, but the Polish court does not see it that way. For years there is an open war between Warsaw, Brussels and Luxembourg. The European Commission has led Poland to the courts in repeated occasions by its legal reforms, for trying to end the independence of the judges, by necessitating for many. Warsaw, by the hand of Mateusz Morawiecki, has always lost but has not loosened. Upon reverse has gone until the end.

"Poland has just taken a legal step towards the abyss of 'Legal Polexit'", explained Jakub Jaraczewski, researcher at Democracy Reporting International, highlighting that what happened this Thursday is not comparable to what is seen in Germany or Czech Republic because the judges do not They are independent, but are subjected to the Government Party, the PIS (Law and Justice). Only two magistrates have disagreed from the decision. "To leave a clear thing: the court does not say that the principle of primacy of EU law is incompatible with the Polish Constitution in its entirety, but the limits established by the sentence are quite elastic," adds Jaraczewski. "It should be clearly emphasized that Poland respects the applicable rules of EU law to the extent that they have been established" in EU treaties, the Government spokesman Piotr Muller has ensured statements collected by Bloomberg.

The next step will be an infringement procedure, presumably, which is legally the only available weapon of dubious efficiency. Any attempt to activate Article 7 of the treaties, the 'nuclear button' that can ultimately leave a country even without the right to vote in the European Council, would be blocked by Hungary. European sources suspect that the Polish government will want to take advantage of the next few weeks to try to complete its most controversial and criticized reforms, and it is to be seen if the Tjue, with precautionary measures or not, can do something. "It is a legal revolution," explains René Repasi, professor of International and European Law at the Erasmus University of Rotterdam. "It is the clearest step towards a legal exit from the EU that a national court has ever taken," he adds.

But perhaps the most interesting debate in the background is what situation is opened from today. Some actors will say that you have to do as if it had not happened and continue to negotiate politically. Others, harder, can interpret the decision of the Constitution almost as what happened with activation by the United Kingdom of Article 50 that led to its withdrawal. And a part that can not be disdained, inside and outside the institutions, will see the challenge as a rupture of the legal order, assuming that the treaties stop having effects in Poland. A gigantic problem in any of its variants.

The Commission opened it in June to Germany for the actions of its court, at the estimate that it had opened a dangerous precedent and will be one more in the battle with Warsaw. Brussels, however, now has a weapon in very powerful arsenal: money.

The European Commission has not yet approved the Polish recovery plan, the necessary procedure to be able to access billions financed with joint debt issues. Warsaw needs that money but it will not have many allies who defend moving forward. Politically it is almost impossible to sustain the 'business as usual', which is still going on. The technical services detected deficiencies in the Polish program, by legal issues precisely, and the Commissioners maintain the same opinion.

Updated Date: 08 October 2021, 03:42

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