08 Oktober 2021

The Exit Door

Is Poland on its way out of the EU? Claims abound that a „legal Polexit“ is imminent after the madness that the Polish „Constitutional Tribunal“ brought into the world yesterday. The institution formerly known as the Constitutional Tribunal of the Republic of Poland, illegally captured since 2015, degenerated into a subservient tool of the PiS government and no longer worthy of its official name, yesterday declared core elements of EU primary law incompatible with the Polish constitution at the request of the PiS Prime Minister. As far as I can gather from the English translation of the operative part and as far as this document can be taken seriously as a legal text at all, this institution envisages Poland’s future EU membership in such a way that EU law and ECJ rulings will in principle only be binding within the limits drawn by the Polish constitution as interpreted by the Polish „Constitutional Tribunal“ and thus by the PiS government. This applies above all where the independence of the judiciary is at stake, but is not at all limited to this.

In case of a conflict between EU law and domestic law, including the constitution – to cite an example, Article 12a (4) of the German Grundgesetz – the former prevails over the latter. This has been an elementary part of the European legal community for half a century, three and a half decades longer than Poland has even been an EU member. Breaking with this, in fact, terminates the „basis for business“ (Geschäftsgrundlage) for the entire European integration, as Franz Mayer called it yesterday. The question is, however: what will follow from this?

The direct path to Polexit leads via Art. 50 TEU, the voluntary withdrawal norm of Brexit fame. One could come up with the idea that the „Constitutional Tribunal“’s revocation of the Geschäftsgrundlage amounts to a full-blown decision to withdraw from the EU (along the lines of a highly controversial proposal Christophe Hillion made here last year already). That sort of interpretation is in principle not an unfamiliar move for German lawyers who are used to infer the true will of a person from his actions and hold him to it, even if he has not explicitly expressed or even denied it. But quite apart from the question of how such an implied withdrawal is supposed to be compatible with the need for a formally notified declaration by the Polish government (Art. 50 para. 2 TEU) – no will to withdraw can be inferred from this ruling, even if it revokes the Geschäftsgrundlage of European integration a hundred times over. That is what makes the situation so desperate: The Polish government has no wish whatsoever to take Poland out of the EU. They may well intend to harm the EU, but they prefer to do so from within.

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What about an „indirect“, a „legal Polexit“ as some are calling it? Daniel Sarmiento argues that the consequences of this ruling, as far as the PiS government implements it (and has it published in the Official Gazette in the first place), would cause much the same effect as a formal declaration of withdrawal: „The Treaties shall cease to apply to the State in question …“ (Article 50(3) TEU). After this ruling, and without an independent judiciary, there can be no integration through law, no principle of mutual recognition, no more referrals to the ECJ, nothing.

The talk of „legal Polexit“ suggests that such EU membership in name only could somehow be a stable condition: Okay, Poland, you made your bed, now lie in it. You chose to no longer participate in the community of law. That’s your loss, not our’s.

I am not convinced. Unless their government, God forbid, pushes the Article 50 button, Poles remain citizens of the European Union. According to Article 47(2) of the European Charter of Fundamental Rights, they have „the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law“ as much as any German or Frenchwoman. As long as that is the case, I find it hard to see how the legal community can accept that they should be denied access to it.

Whether Poland has a future as a member of the EU, and which future, is not a legal question but a political one. There is no procedure in the EU treaties for throwing out a member state against its will. The exit, if any, must be made by the member state himself, which must press the Article 50 button in accordance with the rules laid down by its own constitution. And it can still take back this decision until the last moment. No one is expelled from of the EU against their will. No one takes the responsibility for the decision to remain a member or not away from the member state in question.

The EU can take Poland by this responsibility. At the moment (the opposition wants to change this and is demanding a two-thirds majority), a majority in the Sejm is sufficient for withdrawal, and the PiS government is in control of that for the time being: This means that the decision on the continuation of membership is their responsibility and no one else’s. The EU has a powerful financial lever in its hand, on the one hand with the NextGenerationEU billions, on the other hand with the new rule-of-law mechanism that allows cuts in transfer payments to protect the EU budget – a necessity that can certainly be justified even better than before after yesterday’s „verdict“. The Commission should not fear to use it. The PiS government can now only escalate the conflict by pressing the Article 50 button – a move which would most likely be their undoing, if they were panicky and stupid enough to actually execute it. And if it isn’t and they are in fact rewarded by an electoral victory: well, then and only then would Polexit indeed be the free and democratic decision of the sovereign Republic of Poland, which would have to be respected despite all regrets.

This presupposes, of course, that the EU Commission seizes the opportunity to revoke its fatal promise of last December not to activate the rule-of-law mechanism for the time being. As is well known, the Council, with the approval of Commission President von der Leyen, in blatant disregard of its competences, had agreed to „suspend“ the rule of law mechanism until the ECJ had ruled on the complaints of Hungary and Poland against it. Next week, these lawsuits will be heard in Luxembourg, and if there was no reason to wait for the ruling before, there is even less now. In revoking this awful „suspension“, the Commission could help to dispel some of the doubts that it has managed to arouse through its appeasement policy towards Hungary and Poland. This would be important because the commitment of the EU institutions themselves to the rule of law must be beyond any doubt, if only because of Article 23 (1) of the Grundgesetz which links the participation of the Federal Republic of Germany in the development of the European Union to it. Let no one claim that we do not take national constitutional law seriously.

Thanks to Alexander Thiele for his valuable input.

The Week on Verfassungsblog

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Speaking of Afghanistan: Our first online symposium on 9/11 twenty years after has started, tracing the impact of the attacks on international law. Two decades of war in Afghanistan were among them, ending a few weeks ago with the humiliation and retreat of western allied forces, which raises questions about responsibility to protect not only at the beginning and during but also at the end of a military campaign. THILO MARAUHN, DANIEL MENGELER und VERA STROBEL do think that Germany has failed its duties in this respect. FRÉDÉRIC MÉGRET examines the „intermediate solidarity“ of Western states for their Afghan interpreters and contrast this „sense of patriotic noblesse oblige to former allies with a more critical international evaluation of the status of these interpreters“. ASAD KIYANI deconstructs the Western exceptionalism with respect to international crimes. HELMUT AUST and JANNE NIJMAN focus on the urban dimension of the 9/11 attacks. And JOCHEN VON BERNSTORFF warns against letting the current and somewhat self-centred debates about the 20 years of Western presence in Afghanistan and its inglorious end obscure the considerable collateral legal nihilism accompanying the „war against terror“. Further contributions will follow in this online symposium which I already warmly recommend for your attention.

In a recent opinion, the Inter-American Court of Human Rights found that unlimited presidential re-elections are a violation of Inter-American human rights standards. In doing so, it sets substantive limits on how states can design their electoral systems. This is a far-reaching and courageous step, write CHRISTINA BINDER and MARIELA MORALES ANTONIAZZI.

DAILOR SARTORI JUNIOR and CAROLINA A. VESTENA report on the largest indigenous mobilisation in Brazil’s history at the end of August 2021. Organised by the Association of Indigenous Peoples of Brazil (APIB), more than five thousand indigenous people from 117 different groups set up camp in the capital Brasilia to protest against the further erosion of their rights.

In Germany, TV presenter Jan Böhmermann’s team revealed that various ministries targeted voters on Facebook with messages tailored to specific target groups in the run-up to the Bundestag elections. For DIANA ZU HOHENLOHE, such microtargeting is the use of official resources for the election campaign and thus a blatant violation of the constitution.

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So much for this week. All the best to you, stay safe and healthy, please support us on Steady and/or Paypal, and see you next week!

Max Steinbeis


SUGGESTED CITATION  Steinbeis, Maximilian: The Exit Door, VerfBlog, 2021/10/08, https://verfassungsblog.de/the-exit-door/, DOI: 10.17176/20211009-061406-0.

5 Comments

  1. Piotr Szafranski Sa 9 Okt 2021 at 20:49 - Reply

    One of Polish lawyers advised general public to not even try to understand the ruling of the „Constitutional Tribunal“ in question, as it is somewhere between a word salad and an internally and externally (against body of law) contradictory text. Which is no surprise, as the ruling party makes it’s judiciary appointments from lawyers with a long rap list of failing various professional evaluations. A separate grotesque story, how failing a professional examination to a lowest court appointment becomes a golden ticket to the highest courts in Poland, on the current ruling party nomination list.

    To make things worse, both official propaganda and independent journalists write articles about this ruling (with very differing theses, of course) trying to find some legal sense (correct or incorrect sense, but SOME sense) in it. Which is a futile exercise. Moreover, now each side (government propaganda vs independent journalists) can legitimately claim that the comments of the other side are nonsense. Such is a penalty for explaining a nonsensical original text.

    Still, this nonsensical ruling by the Polish Constitutional Tribunal can be now used to justify ANY official action in Poland. A well known fact – from a falsehood (better, internally inconsistent falsehood) ANYTHING can be logically derived.

    I am not a lawyer, so I do not know what happens if some high court throws into the body of law a bunch of inconsistencies and pure nonsense. I guess there is not a lot of experience around in that.

    It is much fun and quite tempting to examine various absurd consequences of the ruling in question. For example, one could claim, based on this ruling, that in a contract situation, only the party signing a contract can determine OWN compliance with the contract obligations. Or that Poland was actually never an EU member. Or whatever.

    But the whole situation is not that funny. I do not know, what (and if) is a procedure to consider a ruling of a court as if it did not exist. Which seems to be the only way out here.

    • Piotr Szafranski So 10 Okt 2021 at 22:50 - Reply

      For the record – retired Polish Constitutional Tribunal judges published (10 Oct 2021) a statement „…we deem our duty to correct multiple false assertions contained in the ruling in question…“ and listing 10 items. I think they did not question the date put on the ruling and the font it was written with, but as for the rest… The signature list is basically a who-is-who of Polish constitutional law scholarship.

      On the other hand, the current Chief Justice of the Polish Constitutional Tribunal is best known for failing evaluations during her regional court tenure (something like 50+% of her rulings were reversed on appeal, a record) and cooking (I am not joking) the best pierogi (dumplings) the current ruling party leader ever tasted – according to the said leader newspaper interview. Hence the changed reading of the acronym „TC“ for the Tribunal. It used to be read „Constitutional Tribunal“, but now it is „Culinary Tribunal“. The latter title is probably justly won on merit, no need to doubt that opinion of the party leader.

  2. marekc Mo 11 Okt 2021 at 16:38 - Reply

    Actually EU has now „nuclear weapon“ – if EU-Poland treaty articles are illegal then the whole EU-Poland treaty can be declared void and null. No need for Art. 50.

    • Piotr Szafranski Mo 11 Okt 2021 at 19:53 - Reply

      With the usual „I am not trained in law“ disclaimer, this „EU-Poland treaty articles are illegal“ consequence is one of things I wondered about.
      Perhaps contrary to what I wrote, there is an interpretation of the published „Constitutional Tribunal ruling“ which is logically consistent (never mind absurd).
      It is within Tribunal authority do declare Polish laws and executive actions in conflict with Constitution, thus void.
      Therefore, if Tribunal found „Constitution says that nobody but Poland can determine whether Poland observes ‚rule of law‘ principles“, this means that the signatures of the Polish Parliament and President under EU treaty were made illegally, in conflict with the Polish law.
      Because EU treaty allows European Court to determine whether member states are in compliance with the treaties. And the treaties include „members obey ‚rule of law‘ principle“.
      So the only way I see to make all this internally consistent, it is to accept that Polish accession to EU was illegal, thus void.
      Does this mean Poland should retroactively pay EU tariffs for goods traded interim, and return net EU monetary transfers?

  3. Piotr Szafranski Di 12 Okt 2021 at 09:13 - Reply

    One more issue: in the context of the Polish Constitutional Tribunal ruling, does the Art. 50 procedure still applies in the context of a hypothetical formal separation between UE and Poland?
    The Polish Constitutional Tribunal just claimed that the EU access treaty, which Poland signed, is in conflict with the Polish Constitution. In such a situation, are parties to the access treaty still bound by the procedures of separation described in the treaty?
    Or is this separation now a default, without a need of a separate Art 50 notification?

    In addition, in the current situation, what is the legal responsibility, in a purely legal/bureaucratic sense, of people signing EU fund transfers to Poland? Are they obliged to hold those transfers until the legal status of Poland in EU becomes clear? Because if one interprets the Polish Constitutional Tribunal ruling as „Poland, by it’s own laws, cannot be in EU, and NEVER could have been“, then the effective date could be recognized as Oct 8 2021, making all money transfers after that date without legal ground.

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