Polish court defers decision on EU Rule of Law for fourth time

Controversial Constitutional Tribunal has once again postponed its judgement on whether EU law has legal supremacy over Polish national law
The Constitutional Tribunal sign is seen on April 15, 2021 in Warsaw, Poland. Credit: Aleksander Kalka/ZUMA Wire/Alamy Live News

By Andreas Rogal

Andreas Rogal is a Brussels-based journalist and copy editor

22 Sep 2021

Poland’s controversial Constitutional Tribunal has - on Wednesday-  once again, postponed its decision on the application submitted by the country’s Prime Minister Mateusz Morawiecki that EU law has no supremacy over the country’s national law.

After listening to statements by representatives of Morawiecki as well as the country’s President, the Sejm (the Parliament’s lower house majority), i.e., the ruling Law and Justice Party (PiS), the Prosecutor General (who is, at the same time, Poland’s Minister for Justice) and the Ombudsman - the only party arguing against the prime minister’s application – the Constitutional Tribunal’s President Julia Przyłębska postponed the case for the fourth time.

As Michael Meyer-Resende, Executive Director of the Berlin-based think tank and advocacy Democracy Reporting International (DRI) put it via Twitter: “[The] Polish (illegitimate) Constitutional Tribunal is playing Netflix. Cliffhanging us on its ‘we may blow up EU law in Poland, or maybe not, or not yet’ case until 30 September”.

DRI’s ‘Rule of Law’ research coordinator Jakub Jaraczewski had live tweeted from the proceedings and noted that the representatives arguing for Morawiecki’s application had made particular reference to rulings by other national courts - in Romania, Spain and, most notably, Germany.

Although they have all been probing the boundaries between EU and national law, this, in Jaraczewski’s words “building [of a] narrative about the Polish Tribunal fitting into an ongoing judicial dialogue in [the] EU”, is seen by most legal experts as dubious because none have actually questioned the principle of the supremacy of EU law in the way that Morawiecki’s notion does.

But is this postponement a sign of the Polish government having second thoughts about their confrontational position vis-a-vis the EU’s court, and executive branch, as some commentators have suggested?

Another recent legal case doesn’t seem to point in that direction, in fact, if anything, it speaks of a hardened stance.

"As Michael Meyer-Resende, Executive Director of the Berlin-based think tank and advocacy Democracy Reporting International (DRI) put it via Twitter: “[The] Polish (illegitimate) Constitutional Tribunal is playing Netflix. Cliffhanging us on its ‘we may blow up EU law in Poland, or maybe not, or not yet’ case until 30 September”"

On Monday, the European Court of Justice (CJEU) imposed daily fines of €500,000 for non-compliance with an interim measure issued in May, ordering the cessation of mining activities under current conditions at the disputed Turów mine on the Polish-Czech border.

The Polish government has since reacted defiantly, with various ministers taking it in turns to denounce the decision.

Deputy Justice Minister Marcin Romanowski tweeted on Monday, “The CJEU demands half a million euros in daily fines from Poland for the fact that Poland did not leave its citizens without energy and did not close the mines overnight. It is judicial robbery and theft in broad daylight. You won't get a cent."

On Tuesday, Morawiecki told a press conference: "This decision is totally wrong... We do not plan to stop operations of the Turów mine and energy power plant."

On Wednesday it was Education Minister Przemysław Czarnek’s turn attacking the Spanish CJEU judge who had made the ruling, CJEU Vice-President Rosario Silva de Lapuerta, saying she might as well “set herself a million a day. This is unlawful and incompatible with the Treaties”.

"This judge” Czarnek added, “who has close links with politicians from the European People's Party (EPP), and who, in the ideological war against Poland, has decided to pull this kind of stunt".

By contrast, John O'Brennan, Jean Monnet Professor of European Integration at Maynooth University in Ireland commented: “Great to see ECJ imposing daily fine of €500,000 on Poland for failing to live up to its order of May on Turów power station. Poland is in flagrant breach of its obligations under the treaties, and the coal mine is a cross-border hazard.”

"On Monday, the European Court of Justice (CJEU) imposed daily fines of €500,000 for non-compliance with an interim measure issued in May, ordering the cessation of mining activities under current conditions at the disputed Turów mine on the Polish-Czech border"

The Turów mine has been operational for over a hundred years but recent extensions have seen it edging ever closer towards the border. Prague accuses Warsaw of having failed to consult its neighbour in the planning and execution of the mine’s extension, and of causing serious environmental harm.

When the dispute dragged on, the Czech government took its grievances to the European Commission and the CJEU early this year. Both came out in favour of the Czech Republic, declaring that Poland had breached EU law.

As of June, a dialogue between Prague and Warsaw has been under way to resolve the dispute by agreeing on technical upgrades to the mining process, including measures to limit further damage to water levels, and reduce noise and air pollution - which would allow the vast open pit lignite mine to operate legally again.

Czech MEP and member of the European Parliament’s Environment, Public Health and Consumer Safety Committee (ENVI) Stanislav Polčák had said earlier this week that, “These [mining] activities have a major impact on water resources, the spread of dust and on living in general. Among good neighbours, the environment must be addressed together. The Polish government must act.”

His plea has so far not made it through the howls of indignation currently emanating from Warsaw.

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