Poland asked the most hated question in Brussels: is an EU member state a sovereign state or not? On October 7, at the end of a fierce political and legal war, the Constitutional Court of Poland ruled that European law did not take precedence over Polish national law. The decision shocked the EU’s top apparatus, which probably detected the smell of Brexit – that explosive mix of fundamental principles and definitions that the EU has learned to fear during its years of divorce from Britain. The EU’s response has been swift and, by local standards, aggressive: European law must take precedence and the EU will use all means to ensure the supremacy of European law.
The Poland-EU conflict threatens to repeat Brexit, although it is hard to believe that, in the end, a large continental state like Poland, deeply tied to European markets and traditions, could break away from the EU system. But the conflict exists and it is just as hard to believe that things will remain the same.
It is based on a contradiction that the East has repeatedly or indirectly accused: the difference in values, their import and imposition by legal means. Thus, for a large area of Eastern Europe, including Poland, European law is nothing more than the vehicle that fixes, in other states, the liberal and post-liberal values of the Western ruling world. We thus quickly reach the issues that usually find the West and the East in incompatible positions: sexual policy, family, migration, energy programs, climate change and the right to build the judiciary.
In the case of Poland, none of these issues are seen and resolved according to EU taste and norms. The Polish refusal has blocked most forms and decisions that give, in the western part of the EU, the definition of sexual identity and family, the right to migration and energy policy. Poland does not officially cultivate minority sexual groups, is not open to migration, has launched massive family support programs (“traditional” – as it is called, restrictively in the West) and insists, as a major coal power, to use resources to the detriment of so-called green energy.
But the incident that caused the explosion came from justice. The Polish right-wing government has initiated a comprehensive reform of the judiciary, claiming that it seeks to eliminate communist remnants and hold judges accountable for court decisions. On 15 July, a decision of the European Court of Justice declared all these measures illegal, the decision of the European Court established, in fact, that Poland must comply with European law and judicial decisions. On October 7, the Constitutional Court of Poland responded with a decision stating that Polish law and judges have priority and are sovereign in Poland. At this point, the nature of the conflict can be described by an elementary question: who is actually leading Poland? The sovereign Polish nation through its institutions or the European Union, through the Treaties to which Poland has voluntarily acceded?
Formally, the answer is clear: Poland must comply with the provisions of the European Treaties to which it has acceded. Basically, things are infinitely more complicated.
It should be noted, first of all, that the decision of the European Court which provoked Poland’s anger is not based on the European Treaties which do not provide for the right of any European institution to intervene in the process of selecting and appointing judges from the Member States. A legal interpretation used during the dispute says that Poland has ceded sovereignty to the EU on the basis of its own Constitution, and this situation cannot lead to the undermining of the Constitution.
Finally, the conflict with the rule of law is not a Polish monopoly. Recent decisions by the German Constitutional Court have denied the primacy of European law and have established, first, that EU decisions guaranteeing the European financial system cannot be applied in Germany. Then, that EU decisions to issue securities to guarantee anti-COVID support funds violate German law. Even partially stated, the conflict between European law and national law exists and tests the extent of state sovereignty in EU Member States.
Also on the practical side, the argument that Poland cannot be the massive beneficiary of EU aid and an anti-EU rebel has made a career. Indeed, a common sense judgment says you can’t get your hands on it. But, even here, the reality is extremely complex and little known in its in-depth details. Thus, for many European countries and for many analysts of West-East interaction, the image of concrete relations in the EU requires a broader calculation.
Poland receives € 13 billion net annually through the EU funding network. Equally impressive financial assistance flows from the EU to all Eastern European states and no one can ignore or deny this massive contribution. But the conclusion that the EU has a huge charity program is blocked by the combined figures of economic relations.
Poland and the other EU Eastern European Member States are huge markets that buy a large part of the production of Western European Member States. In 2020, for example, Germany totaled 179 billion euros in exports to Eastern Europe. Compared to 103 in the United States and 96 in China. In parallel, over the past nearly 20 years, the Eastern workforce (at least 10 million people, a third of whom are in higher education) has massively added value to Western economies and caused huge losses in unrecovered spending. and industrial scarcity in the East. A recent OECD report puts Eastern European losses at 400 billion euros. Even more pressing, the great upheavals in the demographics of the East, say that “The East will age before it gets rich” (in the words of an economist at the European Bank for Reconstruction and Development).
Returning to the economic and financial balance, we must not forget that Eastern states find that the practices applied to their economies through European rules and laws compress the local potential and reduce the chances of internal development. Thus, exports to the west are filtered too severely by certification provisions, the public auction mechanism ends up taking “yours” out of the game, and the draconian restriction of state aid prevents domestic investment.
At the end of this extended calculation, EU intervention in the Eastern States remains welcome, but cannot be considered a gratuitous act or a form of generosity that deserves unconditional gratitude. The idea of the ungrateful eastern beneficiary is, rather, a press cliché.
In fact, East-West problems within the EU do not seem to be approaching. Insufficiently noted news says that on October 6, leaders of EU states meeting in Slovenia blocked the chance of accession before 2030 for six Southeast European states: Serbia, Montenegro, Bosnia and Herzegovina, Macedonia, Albania and Kosovo. All these states hoped to get a firm promise of accession before 2030. Now the prospect of accession is suspended for an indefinite future. It is possible that the Western nucleus feared the repetition of the 2004-2007 period that brought millions of Poles, Romanians and other Eastern workers to the EU. The reaction of Western voters, many of whom are liable to be displaced by the influx of cheap labor, is unpredictable and feared. Brexit was a well-understood warning.
But all this can no longer be part of the official version in which the EU’s Western sector is the constant benefactor of the East in an equal Europe. Not even the formula that equates the EU with Europe no longer has the usual automatism. After all, 340 million Western Europeans have a profitable relationship with 103 million Eastern Europeans. This is in a Europe that actually has 160 million Europeans outside the EU – most of them Eastern Europeans.
The clash formalized by the recent decision of the Polish Constitutional Court is, in fact, as much a European issue as it is a national one. It puts the EU in front of a future in which the legal supremacy of the center will no longer be a given without reply and reminds, once again, that the East-West relationship cannot take hierarchical forms. After all, both the East and the EU are parts of Europe.