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Poland: Does EU law shield against the rise of populism?

Frédéric Petit
Florence Levillain

The European Union has been built on the principles of law and its application since its birth. Unprecedentedly in recent history, the Polish Constitutional Court has ruled that certain articles of the EU Treaties, concerning justice, are incompatible with Polish law and therefore unenforceable.

Whether this is a temporary episode, a well-founded fear or the beginning of a fundamental movement, Frédéric Petit, deputy secretary general of the EDP, explains the situation

Can you explain clearly what happened in Poland?

What happened in Poland, first of all, is not the beginning of a Polexit. It is very important to stop this little music that we hear around this phantasmal prediction of a Polish exit from the European Union. Nobody in Poland, apart from some extremists who do not even represent 10% of the Polish population, wants to leave Europe. Not even the ruling party.

I have lived in Poland for more than thirty years, and Poles are fiercely attached to the European Union because it represents, together with NATO, their best ally for their security, peace and prosperity. I would even go further and say that Poles would like to have more responsibility in Europe, especially in protecting the EU's eastern border. Because of their history and culture, they are aware of the role they can play for the security of all Europeans. So let's stop playing scare games and take a hard look at what this opinion of the Polish Constitutional Court says.

Where does it come from? It is a response to a specific request from the Polish Prime Minister, it is an opinion, not a judgment on a specific case. It details certain paragraphs of the European treaties that the Constitutional Court declares to be in conflict with certain paragraphs of the Polish Constitution. But the Constitutional Court does not say that Polish law is now superior to European law. The court does not make a statement on that. You have to be precise if you want to challenge this decision properly.

Is this challenge to European law unprecedented?

Unprecedented? Yes, if you consider that it is a first in Europe. But this "questioning of European law" is in no way written in this way: from now on Polish law is superior to European law, no. There are two readings of this extremely technical opinion.

Either this judgement states the obvious because these EU articles were introduced after the adoption of the Polish Constitution of 1997, and these articles were voted by referendum by the Polish people only in 2004. These European provisions could not be exactly in line with the Polish Constitution passed 7 years earlier. To comment on this difference between the Polish and the European constitutional articles is clearly an open door.

Either this decision of the Constitutional Court represents an attempt at political instrumentalisation. It is the result of a tug of war between the ruling party and the European Commission. But again, in no way does this ruling proclaim the superiority of Polish law over the European treaties.

Is there a fear that this is just the beginning and that other countries will follow this example?

What I hear from my Polish interlocutors is that this decision of the Constitutional Court has also been taken in other countries, so that Poland also has the possibility to take it and that it is Poland that has followed this example. But this is not true, the constitutional courts of other countries have never questioned the content of the treaties voted by the people, considering that they were committed. They have sometimes analysed a specific decision, asking, at most, that it be reformulated or validated differently. None of them has ever considered that the content of the treaties was itself unconstitutional, but on the contrary, the people having committed themselves to it, that the treaties completed or amended the constitution.

To answer your question more precisely: yes, we can fear it. We can already see that this opinion given by the Polish Constitutional Court has amazed at least two more or less assumed candidates for the French presidential election, Éric Zemmour and Arnaud Montebourg. But they are exploiting this decision. What they are asking for is the superiority of French law over European law, not the opinion that was given.

Is Europe strong enough to meet this challenge?

I believe that it is first and foremost the Poles who must respond to this challenge. We must stop this infernal machine that is creating large areas of legal vacuum, and the Polish parliament must take back control by getting out of this trap. This is possible, and this is the will that was expressed in the streets throughout Poland on Sunday.

Europe will be strong enough to respond to this challenge if it keeps its cool, if it does not get into a battle of slogans and if it manages to take the heat out of this debate.

Are we in the middle of what we are seeing at national level today: a mistrust of Europe and the return in force of national sentiment, even nationalist in some cases?

This opinion of the Constitutional Court must be separated from the current debates that we have in Europe between "progressives" on the one hand and what are commonly called "populists" on the other. As I said, the Poles are attached to Europe, so there is no fundamental distrust of the EU, but there is an attempt by some politicians to exploit the "powers" of the European Union, playing on past sourness.

When they talk about "interference" by the European Commission and the European Court of Justice, it speaks to a part of the Polish electorate that is afraid of being dispossessed of its sovereignty. But our answer to them must be simple: this is not interference. The Court of Justice of the European Union is provided for in the treaties approved by our Polish friends themselves almost twenty years ago! It was they who voted for these articles. Moreover, it is not interference, it is management of public money!