The Threat of Judicial Mutineers or Fear of PLEXIT New Challenge of the European Union

The Polish constitutional court issued a decision last week that questioned some EU agreements and one of key European integration principles which were incompatible with this country’s constitution.
30 October 2021
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Ali Beman Eghbali Zarch

The Polish constitutional court issued a decision last week that questioned some EU agreements and one of key European integration principles which were incompatible with this country’s constitution. Julia Przyłębska , president of the Constitutional Tribunal, said: “ European institutes outreach their powers.” She has condemned the European Court of Justice’s interference in the Polish judicial system and has bought up a number of cases in the EU agreements, which “to the Polish judges are in contradiction with the Polish Constitutional Court.” The open opposition of Hungary and Poland with the Brussels at the Court of Justice of the European Union (CJEU) has led to the new mechanism of the European fund payments being conditioned to observance of the rule of law and depriving these courtiers of these payments, which has become a new challenge, being exasperated by the Polish Constitutional Court. This is while in numerous cases the Luxembourg, Budapest and Warsaw courts have initiated revision of the European institutes.

The European Union intends to use the leverage of financial aids for the corona to make all members respect the decisions of the CJEU, and the step taken by the highest Polish judicial authority (close to the ruling conservative Law and Justice Party) is declaration of war on the European right of pre-emption and the jurisdiction of the European Court of Justice has made the Brussels more determined to make it possible to enforce the conditioning mechanism, which was the result of a hard compromise on the enactment of the EU long term budget at the end of 2020, to suspend or reduce the European payments to a government, in case of violation of the principle of the rule of law, such as insufficient efforts for solving conflicts of interests, infringement on the independence of the Judiciary, or being damaged or damaging the EU financial resources. Of course, there is no doubt that in this between Warsaw and Budapest may be threatened by the EU, due to the challenge of violating the conditions of integration with the EU. At the same time, both countries received warnings from EU members in March 2020, and at the next stage, the EU member states agreed to wait the decision of the CJEU before acting on the decision of the European Commission. However, some representatives of the EU parliament condemned the delay and threatened, in case of non-enforcement of the multistage decision of the EC and before any probable sanctions, it must be confirmed by a majority of qualified EU member states and insisted on deferring or reducing the EU financial aids in the coming weeks; however, the decision of the CJEU on Poland and Hungary appeal trial which was held at this week’s two-day session will be issued within several months.

No doubt, the EU representatives, after the BREXIT shock, are worried that Poland’s historic decision has fanned fears of PLEXIT and once again asked the Brussels to take an action, as a retaliatory step, against the unprecedented decision of the Polish Constitutional Court. However, the Polish judicial decision in Warsaw made tens of thousands of Poles support their country’s membership in the EU; in fact, the Polish court has stressed its country’s judicial independence and argues that threats and sanctions are a real change in the agreements and do not include the necessary guarantees for objectivity and impartiality. At the same time also, Hungary maintains that some behaviors and conditions that may be sanctioned have not been precisely defined and create legal uncertainties. Along those lines, the Hungarian prime minister has accused the European institutes of abuse of power to the disadvantage of the member states; in a statement in support of Poland, Viktor Orban stated that the Brussels was trying to deprive the countries that had not joined the EU of their ruling powers, without reviewing the EU treaties, and the right of pre-emption of the European law must be enforced only in cases that the Brussels has jurisdiction and the framework for this has been stipulated  in the basic EU treaties. It has also to be said Judit Varga, the Hungarian minister of Justice, has said in her twitter:” membership in the EU does not mean that the CJEU can ignore national constitutions or Poland fully bestow its sovereignty to the EU and we fully understand Poland’s response that has arisen out of the EU’s institutions’ bad ways, and therefore, the Brussels royal ambitions must stop.

The Brussels, in recent years, has repeatedly criticized Hungary and Poland, led by conservative leaders, due to violations of the rule of law , European values and restricting human rights, judicial reforms, or refusing to allow in refugees, and in response, Budapest and Warsaw have accused the European commission and the CJEU of double standards. The reality is in cases the EU decisions have been met with opposition from EU major states, for example, this year; Germany challenged the European Central Bank which in the ownership of governmental assets has exceeded its powers. While the German constitution judges have stated the decision of the Court of Justice has no legal effect in Germany. The main point is that the decision of the German constitutional Court was warmly welcomed by the Polish Prime Minister, Mateusz Morawiecki, as one of the most significant decisions in the history of the European Union.

Under current conditions, there have been considered credits, worth 12.1 billion euros of loans and 23.9 billion euros of subsidies, for Hungary and Poland, that have been , at present, blocked, due to similar issues with the governance of the EU. However, following the Polish Constitutional Court’s decision, the president of the EC said that he would act on the fundamental principles of the EU and all the decisions of the CJEU were binding for all authorities of member states, including the national courts, because the EU’s rights and rules have priority over the national laws , such as the constitutions, and this is a commitment made by all EU member states when they joined the EU. In this line, the foreign ministers of France and Germany, Heiko Maas and Jean-Yves Le Drian, have asked Poland, in a joint statement, to precisely accept the European rules and CJEU decisions, because membership in the EU is accompanied by full and unlimited commitment to joint values and rules.

 In a general summary it can be maintained that following the BREXIT and other domestic and transatlantic challenges of the EU, Budapest and Warsaw decisions, while being a contradiction between the joint democratic pillars and the imposition of the Brussels’ decisions, have created a new challenge for the European synergy and damaged the assuring perspective of the EU, and no doubt have caused delay and defects in the EU expansion process towards east, especially to the West Balkans and accepting its countries into the union. However, the European Union has repeatedly applied double standards in the type of its foreign relations and has yet to get full and complete autonomy and independence.

Ali Beman Eghbali Zarch, Senior Expert of European Studies

  (The opinions expressed are those of the authors and do not purport to reflect the opinions or views of the IPIS)

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