‘Polexit’ is unlikely, but Polish crisis brings worse risks, analysts say – 10/16/2021 – World

The legal and political crisis between Poland and the European Union should not lead to ‘polexit’ —the country’s exit from the European bloc—, but there are risks of more serious outcomes, according to foreign policy specialists.

On the 7th, the Constitutional Court of Poland, the highest court in the country, ruled that the Polish Constitution supersedes parts of the bloc’s treaties, allowing the Polish government to fail to comply with decisions of the EU Court of Justice (ECJ).

The confrontation brings political, economic and geopolitical risks and requires a forceful response, according to analysts from four different countries who participated in a seminar promoted by the European Council of International Relations (ECFR) on Friday (15).

A “polexit” is seen as unlikely by analysts for several reasons, including the fact that most Poles are in favor of integration with the EU, and the current internal situation, in which the ruling party coalition, Lei and Justice (PiS), has a narrow margin of majority in Parliament.

“There is no chance that the Parliament will approve an exit from the bloc. A government that tried that would be overthrown instantly,” says Piotr Buras, director of the Polish ECFR section.

For the Polish analyst, much more dangerous than a departure from Poland is a “dirty stay”, in which a member of the bloc can question and threaten the fundamentals of the EU with impunity.

Out there

The current crisis, says Buras, is not legal but political: “This is not a theoretical dispute over whether European Justice can have the last word, but whether the massacre of the independence of the Judiciary, which is already happening in practice , will be tolerated”.

“The real question is: ‘Can we have in Europe a country where the judiciary is totally controlled by the ruling party, where the minister of justice is also the attorney general and judges can be prosecuted, suspended or punished for consulting the ECJ? ‘.”

According to him, “this must be the fundamental target of any response”, under the risk of a wave of autocratization in several member countries of the bloc.

Shahin Vallée, head of the German Council on Foreign Affairs’ (DGAP) Geo-Economy Program, agrees with the argument that the crux of the crisis is not the Polish court verdict, but the very situation of the judiciary in Poland.

Since coming to power in 2015, the nationalist Law and Justice (PiS) party has promoted a reform that increased its control over the Supreme Court and created a disciplinary chamber for Supreme Court judges, with powers to withdraw immunity, suspend and reduce salary.

The new rules were voted on in 2019 and implemented in early 2020. In March 2021, the European Commission decided to sue Poland in the ECJ for compromising the independence of the judiciary, one of the pillars of the bloc’s treaties.

The ECJ ordered Poland in September to withdraw from the disciplinary chamber, but the PiS government ignored the verdict, then resorted to its own court to declare it contradictory to the national constitution.

For Vallée, the reaction should be not against the verdict, but against the Constitutional Court itself: “It is necessary to make it clear that this court is not recognized, which already violates the EU rules.”

But analysts fear the crisis will strengthen Eurosceptic groups and more right-wing parties, not just in Poland.

Among Central European countries, Hungary has already explicitly supported the Polish government, recalls Slovak Milan Nic, a senior analyst at the Alfred von Oppenheim Center for European Policy Studies (AOZ).

“Orbán, although bold in political confrontations, was always careful in legal confrontations. Now, it will explore the fracture imposed by Poland as much as possible, because it has nothing to lose,” said Nic.

According to him, the current crisis “is a serious threat to the cohesion and integrity of the EU and the common market” and should be discussed by the leaders of the 27 members of the bloc at the European Council meeting scheduled for next week.

“What this crisis shows is that autocracies are being able to establish themselves even under EU treaties, and the borders of the rule of law are being threatened,” he says.

China, Middle Land

According to Nic, it is a “huge political challenge” for the European Union to show clearly that post-Soviet countries cannot continue to receive benefits from the bloc — such as the so-called “cohesion funds”, which should promote democratization — without submitting to to the other rules.

If not, he says, “it’s only a matter of time before the autocratic advance gets much worse, a terrifying scenario for eastern nations.”

On the other hand, any European reaction needs to be cautious, says the Slovakian, not to push its current members into the arms of Russia: “If it loses its connection with Eastern Europe, the bloc could face serious geopolitical consequences, especially now that re-discuss US and NATO military support.”

A tough reaction is not always the best strategy, however, said Caroline de Gruyter, an international relations analyst at Dutch newspaper NRC Handelsblad.

For her, critical statements or warnings from the European Commission allow the Polish government to accuse the EU of interference in internal affairs and national sovereignty.

Buras agrees: “The leaders of the Member States must give firm support to the ECJ. If the conflict boils down to a dispute between the European Commission and the Polish government, the message is terrible: technocracy trying to interfere with elected officials.

Vallée, who was the economic adviser to the French Ministry of Finance and economic adviser to the presidency of the European Council, advocates a vigorous reaction. “If we believe that the bloc’s legal order is being challenged, we need to react with all available instruments.”

In addition to the judicial route, this includes, at the limit, political retaliations, such as the loss of the right to vote at meetings of the European Council, and economic ones, such as the blocking of funds from the EU budget.


What sparked the Poland-EU conflict?

The most recent crisis was provoked by a decision by the Constitutional Court of Poland on October 7, rejecting the supremacy of European law over national law. It was taken after the CJEU ruled that the disciplinary chamber of judges created by the Polish government was incompatible with European law, as it undermined the independence of the judiciary. Poland kept the organ functioning and appealed to its court.

Has Polish justice really lost its independence?

The reform of the Judiciary, voted in 2019 and implemented at the beginning of last year, greatly increased the control of justice by the party that governs Poland, Law and Justice (PiS). A PiS-dominated body appoints judges in the country and a disciplinary chamber responsible for prosecuting, suspending and punishing them.

What is the Commission’s response?

The Commission, Executive Power of the European Union, says that the decisions of the Court of Justice of the EU must be obeyed by all the authorities of the member states, including the national courts. States that join the EU subscribe to the bloc’s treaties and must comply with them in full.

What can the European Commission do?

Politically, it could increase the pressure with public criticism and warnings, but analysts believe that this path would only increase opposition from Eurosceptic groups.

Legally, there are several mechanisms:

Infringement proceedings: A legal process initiated when the Commission finds that a country has violated European law. If it arrives at the CJUE, the case could result in daily fines until the end of the infractions, sums that could be withheld by the Commission from transfers owed to the country. In addition to the dispute over judicial reform, which has been going on for more than a year, the Polish government is under investigation for attacks on LGBTQIA+ rights and press freedom in the country. Rule of law framework: a three-stage process that the Commission triggers when it judges that a country threatens the rule of law. The aim is to avoid the application of Article 7, with more serious consequences. Introduced last year, the mechanism has not yet been detailed Article 7: the most serious procedure triggered when the Commission judges that a country threatens the rule of law requires voting in Parliament and the Council and can lead to the suspension of the right to vote in decisions of the HUH.

Economically, the Commission is already using as a form of pressure the 58 billion euros (BRL 370 billion) blockade for post-pandemic reconstruction. Emergency recovery plans for nearly all 27 members have already been approved, but funds from Poland and Hungary have yet to come out, precisely because of disputes over the rule of law.

Another tougher measure would be the stoppage in the payment of funds from the EU budget — in Poland’s case, funds aimed precisely at strengthening democracy.

Could the crisis lead to “polexit” — Poland’s exit from the European bloc, as in Brexit?

It is very unlikely, as the majority of the Polish population is against divorce, and PiS does not currently have a strong majority in Parliament that would allow it to approve an exit from the bloc.

Did the courts in Germany and France not contest European law either?

Yes, although jurists point out that there are important differences, especially in relation to the independence of the judiciary.

In Germany, the Constitutional Court ruled that the European Central Bank (ECB) exceeded its mandate by approving bond purchase programs and rejected a ruling by the ECJ that had approved the bank’s directives. The German government, however, did not implement the decision of its own court.

In France, earlier this year, the French Council of State (the highest administrative court in the country) authorized the government to keep collecting individual data on the internet, although the ECJ has ruled that this violates the bloc’s privacy rules. As in the Polish case, the French argument was that the French government is obliged by its Constitution to defend its citizens.

Why did the Polish court’s decision provoke more reactions?

More than the verdict itself, the concern of the European Commission and analysts is with the control that the Polish government has over the country’s judiciary. The Polish court’s decision was provoked by the government itself, which refuses to comply with a ruling by the CJEU precisely on aspects of the Polish reform that, according to the European court, threaten the independence of judges.

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