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On the 7th of October 2021, the Polish Constitutional Court has ruled on the primacy of national law over EU law. This ruling came at the peak of a legal war between the European Union and the Polish state. The controversy began with the request of the EU Court of Justice to change certain reforms introduced in the Polish judicial system since they were contrary to EU law. The Polish court responded by stating instead that it is certain articles of the Treaty on European Union (TEU) that are contrary to and incompatible with the Constitution of the country. It is important to stress that the judgment does not have any direct effect on the application of European law in Poland. Its sole purpose is to condition the judges of the national courts to disregard EU law when considering future cases.

Back in 2005, there had already been a precedent. But at the time the declaration of the primacy of the Polish Constitution was mitigated by the affirmation of the obligation for the State to respect, in any case, all the criteria set by the Treaty of Lisbon. After 16 years, the situation has not changed: Warsaw wants to impose its Constitution to prevail over the European law, but, as stated by the President of the Commission Ursula von der Leyen, “all judgments of the European Court of Justice are binding for the authorities of all Member States, including national courts“. Community law prevails and must prevail over the national law of Member States. It is the first time that a State rebels by openly challenging the founding principles of the Union.

The European Union only functions because its members have renounced a part of their autonomy in every field, including the judiciary. It would not be able to work as well if each State decided to ignore the fundamental pillars of Community law as it pleased. The heads of government of the member countries were intransigent against the Polish decision, threatening to stop financing Poland if it did not retrace its steps. Brussels has not yet decided whether to cut off the funds, but the Polish leader Mateusz Morawiecki did not waste any time. In an interview with the Financial Times he promptly said he was ready to start a “third world war” against the EU in case there was a stop to the financial resources, thus provoking contrasting reactions within Poland itself, where he was – rightly – criticized for his warmongering rhetoric.

After the Polish defeat to the European Community law, people immediately started talking about a potential Polexit, following what happened with the United Kingdom and the Brexit. Nothing more misleading. First of all, Poland does not need a referendum to leave the EU. A government decision would be enough. However, this decision will never be taken. It is European funds that economically support Poland, which would otherwise fall into a state of poverty. Furthermore, in the event of a referendum to evaluate the preferences of the citizens, public opinion would be almost totally against an exit from the Union and this would cause serious internal turmoil.

The Polish goal was not a Polexit. Warsaw wanted to bypass the legal obligations, modifying the European Treaty from within to remain a member state without having to respect the primacy of EU law. The debate remains open for now, but if Poland wants to receive the money provided by the Recovery Fund, it will necessarily have to review the position of the Court and adapt to the demands of Brussels.