In late October, relations between Warsaw and Brussels deteriorated sharply. The European Union, which has just emerged from the British "Brexit" crisis, is suddenly plunged into a new crisis. Will Poland follow in the footsteps of the United Kingdom, get rid of her own increasingly unacceptable Brussels "instructions", and withdraw from the European League of 27?
In fact, the signs of "Polexit" are more constitutional and separatist than the "Brexit" movement. Once the relations between Poland and the European Union are out of control and Polexit becomes the only choice, "Brexit" will be more lethal to the European unification process than "Brexit".
Britain’s “Brexit” was because it was “unable to live anymore”, and the main motive was to recover the sovereignty that had been transferred to the European Union. And Europe is fed up with Britain's endless demands for special treatment over the years. In the eyes of many "pan-Europeanists", London's "exodus" is a relief to Europe. However, London has never questioned the legitimacy of the EU legal system; the EU has never dared to teach the United Kingdom, the birthplace of modern parliamentary democracy, that it does not understand "democracy and the rule of law."
But Poland is different. Poles are pure Europeans. A unified Europe without the participation of Poland, the great power of Eastern Europe, is unthinkable. "Brexit" is not yet a real division of Europe; and "Brexit of Poland" means the failure of the European Union to eradicate the "Iron Curtain" to unify Europe after the end of the Cold War. Even if the “domino effect” does not appear and other Eastern European countries will part ways with Western Europe, a Poland that is free from the European Union will inevitably accelerate its involvement in the arms of the United States to counter the world’s enemy Russia, thus turning Europe’s security weakness once again into a confrontation between the United States and Russia. The front line.
Although things are far from this point, the conflict between Warsaw and Brussels seems to have reached a dead end. Unless extremely dramatic changes occur, it is difficult for both parties to be winners at the same time. In the end, the outcome of the game is either Poland surrenders and the European Union accelerates; or the European Union cannot withstand Poland's "rebellious" offensive and its knock-on effects degenerate into a regional international organization, or even risk disintegration.
The game between Poland and the EU far exceeds the superficial reports and comments of some media, and it is developing to a deeper level. Three big dramas are being rolled out. As the main players, the Polish government, the Polish opposition party, the Polish Supreme Court, the European Court of Justice, the European Commission, and the European Parliament have all made their debut.
"Confederation" or "Federation"
The first drama directly involved the ultimate goal of European integration: confederation or federation.
In the sense of international law, the Confederation is a political entity composed of a number of sovereign states. It is a loose political alliance that does not pursue national attributes and does not have a mandatory central government agency. The member states continue to have their sovereignty. Confederate organizations can exercise legislative, judicial, and administrative powers only under the unanimous authorization of member states. For the Confederation, its member states are all independent sovereign states. The Confederacy has only the obligation to integrate common interests, not the power to issue orders. The sovereignty of the member states is not restricted by the confederation, and its constitution is higher than the confederation treaty.
Compared with the Confederation, the Confederation has strong national characteristics. Its members are generally independent sovereign states before forming a federal state. However, once the federation is formed through a joint constitution or contract, each member body no longer enjoys complete and independent sovereignty, and is replaced by the federal government. Under the framework of the Federal Constitution, members will continue to have their own constitution and enjoy part of the sovereignty or autonomy stipulated by the Federal Constitution. However, the legislative, judicial, and executive powers of the Federation are mandatory for all members of the Federation. The federal constitution is higher than the member constitution.
In early October, the Polish Supreme Court issued a verdict, ruling that Articles 1 and 19 of the "EU Treaty" violated some provisions of the "Polish Constitution". The first article of the "EU Treaty" is the soul of the EU's "union". It has a strong federalism and its ultimate goal is the "United States of Europa".
Although the Polish ruling elites have a strong sense of European identity, they also dislike the transition of the European Union to a “federation” and eventually acquire most of the sovereignty of the member states including Poland, making Poland a country that no longer enjoys its own independent sovereignty and is subject to Brussels. Political entity.
Although the "treaty" does not explicitly use the term "federation" but instead uses the name "union", the first sentence of the treaty clearly defines the purpose of the treaty: Sovereignty is transferred to the Union.
The judgment of the Polish Supreme Court is tantamount to declaring that Poland had “unconstitutional” and “unauthorized accession” when it joined the European Union on May 1, 2004. Strictly speaking, this ruling actually means that Poland has "Brexit" in the legal sense.
Internally, this judgment has mandatory legal effect on the Polish government and all Polish individuals and entities. The legal consequence of the judgment is that the Polish Constitution is higher than the European Treaty, so Polish law is higher than European law. As long as European laws and regulations violate Polish laws and regulations, Polish people are not allowed to enforce them, otherwise it is unconstitutional.
Externally, this judgment means that the Polish government is strictly prohibited from continuing to implement any EU policies and decisions that harm Poland’s interests, so as to ensure that Polish sovereignty is not harmed. From the perspective of international law, the verdict is like announcing that Poland is no longer bound by the EU Treaty. As a commentary in the German Business Daily pointed out: If the EU wishes, she can declare that this judgment has abolished the accession agreement signed with Poland and automatically invalidated Poland’s EU membership.
However, the law belongs to the law, and the politics belongs to the politics. Brussels did not have any political motives and proclaimed "Poland Brexit" on its own initiative. For the Polish government, the decision of the Polish Supreme Court is in fact a boost to encourage her to eliminate "interference" from the European Union and continue to implement Polish judicial reforms.
The stubborn resistance of Warsaw’s political and legal elites to the EU shows a clear fact from one aspect: Although the Polish ruling elites have a strong sense of European identity, they also dislike the EU’s transition to a “federal” and eventually acquire member states including Poland. Most of the sovereignty of Poland makes Poland a political entity that no longer enjoys its own independent sovereignty and is subject to Brussels.
In the years to come, Poland will not give up its efforts to influence the direction of the EU’s development in accordance with her own ideals; the European Commission will not tolerate Warsaw’s continued challenge of the “federal” core of the EU Treaty. The next game is estimated to be very fierce.
Whether Poland will "Brexit" depends on how she completes and implements the "historical mission" entrusted to her by the Polish Supreme Court. The verdict is there. It is legally "unconstitutional" for Poland to continue to stay in the EU, and the Polish government has to do something if it does not want to do it, otherwise she is also "unconstitutional."
Three roads in Warsaw
Currently, the Polish government has only three options to choose from: the first is to promote the revision of the Polish Constitution, delete clauses that are contrary to the "EU Treaty", and remove constitutional obstacles for Poland to remain in the EU. But this path is tantamount to requiring the current Polish government and the ruling party "Party of Power and Justice" (PiS) to revise their established line, abandon the ideals of the "Confederation", accept the ultimate goal of the "Federation", and transfer Polish sovereignty step by step. European Union.
The second way is to adhere to one's own ideals, promote the revision of the "EU Treaty" within the EU member states, delete or modify Articles 1 and 19 of the treaty, and clearly stipulate that the ultimate purpose of the EU is not a "federation" but a "confederation" , Thus homogenizing the "EU Treaty" and the Polish Constitution, clearing legal obstacles for Poland to remain in the EU.
The third way is to simply "Brexit". After a hundred times, "one punch to avoid a hundred punches". It not only meets the requirements of the Polish Constitution, but also gets rid of the EU's "tightening curse", and can independently exercise its sovereignty. ,walk my own road. But this road means that Poland has to withdraw from the unified European market. Polish companies and citizens can no longer freely enter the EU's capital market, labor market, and tourism market. Poland will become an "island" in Europe.
This road also means that Poland has to give up the 16 billion euros allocated to her by the European Union each year. After deducting the approximately 4 billion euros of "contributions" she pays to the EU each year, the net income of more than 12 billion euros will be gone forever. return.
What makes Poles even more distressed may also be the European Union's new crown epidemic recovery support fund of nearly 60 billion euros. A large part of it is white silver that does not need to be repaid. Proportionally, Poland should receive nearly 24 billion euros of epidemic recovery subsidies, 12.1 billion low-interest loans and 22 billion euros of market loans.
The money is urgently needed by the Polish government, not to mention that the European Union has made regulations that the money should be in place by 2023 at the latest. Other member states have already received remittances from the European Union, but the Polish funds are still held tightly by Brussels. The message from Chairman von der Lein is clear: Warsaw can ask for money, but first, it must abandon its reform plan to "suppress democracy and undermine judicial independence", dissolve the judge's disciplinary inspection agency, and "restore the honor and work of dismissed judges."
Whether the tough Polish Conservative Party government will be "five buckets of rice" is still a big question mark. "Judicial reform" is the flagship project of PiS as the ruling party, and 2023 will be another election year in Poland. "Kneeling to surrender" to Brussels will inevitably result in the loss of votes. This third way may be the most disturbing choice for the Polish government.
The second big show
If the protagonists of the first drama around Poland are the Polish government and the EU bureaucracy, then the second drama will be staged in the EU judicial system, with the protagonists of Polish and EU judges. The stage for the performance is the Polish Supreme Court in Warsaw and the European Court of Justice in Luxembourg.
For the Polish Supreme Court, Poland has not transferred its judicial sovereignty to the European Union. How to carry out judicial reforms in Poland, right or wrong, can only be decided by Poland's own courts, and the European Court of Justice has no jurisdiction.
The theme of this second drama involves the more realistic power of the European Union, and it is also a legal theory question: whether the sovereignty of member states can be divided, and whether the EU can be allowed to use the sovereignty transferred by the member states to restrain or affect the untransferred sovereignty of the member states. Things happen in the domain of sovereignty.
The current status of EU integration is in a very embarrassing state. To put it mildly, the transition of EU member states from nation-states to trans-national states is still in a transitional stage. To put it mildly, there has been a "sovereign vacuum phenomenon" in the reunification process of the European Union, where there is a "sovereign vacuum phenomenon" in which the EU cannot see the village before it. .
Part of the sovereignty of the member states has been "transferred" to the EU (such as tariffs, trade, currency, etc.), but a large part of the sovereignty is still firmly in the hands of the member states (such as justice, diplomacy, security, etc.). The consequence of this phenomenon is that because member states have transferred a lot of sovereignty to the European Union, they have to obey Brussels' arrangements in many areas.
At the same time, although the European Union has gained a lot of sovereignty, it is not enough to exercise the power of a central government. It often relies on some of the power in its hands to pressure member states to force them to obey EU arrangements in other areas where sovereignty transfers have not occurred. .
The judges of the Polish Supreme Court believe that the sovereignty of a member country can be transferred but indivisible, that is, the transferred sovereignty and the untransferred sovereignty are indivisible as an organic whole, let alone the transferred sovereignty. Jurisdiction over member states in areas where there is no transfer of sovereignty.
This legal point of view actually borrows from the view held by the German Constitutional Court: the jurisdiction of the European Court of Justice is only valid in the field of transfer of sovereignty by agreement of member states, and it has no right to cross this border to conduct affairs in other fields where there is no transfer of sovereignty. Judicial trial.
In this view, the Polish legal scholars feel more cordial in that it recognizes that the domestic laws of member states are higher than European laws under certain circumstances: if the sovereignty of a related field has not been transferred to the EU, the Union has no right to exercise its legislative power. , Judicial power and administrative jurisdiction.
In other words, many members of the legal profession, including some judges of the Polish Supreme Court and the German Constitutional Court, believe that if a member state does not transfer its sovereignty to the European Union in a certain area, then it has the right to make judicial decisions in this area. The court should be the country’s own court, not the European Court of Justice.
It is based on this view that the Polish Supreme Court held that the European Court of Justice in July this year supported the European Commission’s refusal to issue financial appropriations due to the Polish government’s “undermining the independence of the Polish judiciary” as an “unauthorized ruling”. For the Polish Supreme Court, Poland has not transferred its judicial sovereignty to the European Union. How to carry out judicial reforms in Poland, right or wrong, can only be decided by Poland's own courts, and the European Court of Justice has no jurisdiction.
Polish judges who support the government's position firmly believe that the European Court of Justice's ruling is an endorsement of the European Commission's act of splitting Polish sovereignty. For Poles, it is unacceptable for Brussels to use the power of financial distribution management transferred to her by member states to exert pressure on Poland in the judicial field. The above is a tearing of Polish sovereignty.
However, the judges of the European Court of Justice in Luxembourg did not buy the accounts of their counterparts in the Warsaw High Court. On the contrary, they also issued a harsher sentence and issued a sky-high fine on the Polish government: 1 million euros a day, until she "knows the mistake and corrects the mistake" and completely withdraws the "judicial reform".
The EU "sue" the EU
The third drama is unfolding between the European Parliament and the European Commission: The European Parliament sued the European Commission in the European Court of Justice, accusing Brussels of "inaction", delaying initiating sanctions against Poland and Hungary, and "undermining the rule of law" against them. "Tolerate and raise rapes."
Why doesn't the European Commission want to kill Poland's arrogance as soon as possible. Helpless Warsaw is not a fuel-efficient lamp either. A petition filed the EU's so-called "rule of law state mechanism" to the European Court of Justice.
According to this "mechanism", the European Commission has the right to "withhold" financial allocations to member states if she confirms that a country is "undermining the rule of law." However, Poland believes that the EU has no right to determine which country is a "rule of law" and which country is not. The only criteria for distributing financial appropriations can only be objective and practical criteria, and should not be interfered by different political views.
The verdict has not yet come down. The European Commission hopes to wait for the verdict to determine whether to "put into action" to prevent passiveness. Because if the prosecutor wins, where will the face of the European Commission be dignified? What's more, beating Poland to the death will also cause a backlash. After all, major events in Europe still require the approval of all member states before they can be approved. It is not unimaginable that Poland, which is in anxious state, uses its veto power to "veto" major events in other fields.
To the European Parliament, which has always liked to cut the mess with a sharp knife, the European Commission is just a snail, crawling too slowly. This time it seemed that she really couldn't bear it, and actually sent her colleague to court. This phenomenon of "European Union" sue "European Union" is indeed rare. Do not give the Polish rulers a chance to breathe. The increasing pressure on Warsaw should be the real motivation for this unusual move.
Warsaw would rather "tighten your belt" and mobilize more than 15,000 police forces to guard the country's borders, rather than let Brussels get involved in Poland's sovereignty affairs.
Von der Lein seems to be looking for an opportunity to force Poland to submit. Recently, she sent a signal: If the Polish government dissolves the "Judicial Disciplinary Inspection Commission", the EU may consider sending 13% of Poland's dues to the Polish government first. If in the middle of 2022, the verification proves that Poland has indeed done everything required by the European Court of Justice, the balance will be remitted together.
The ball is clearly on PiS's side now. How to kick it back is a big test for this ambitious conservative ruling party. Judging by the hard-line voice of her rightist ruling partner, the Minister of Justice, there is not much hope for compromise.
The opposition party in Poland also issued a warning that the ruling party may go further and further on the road to “Brexit”. According to Tusk's estimation, even if the "Power and Justice Party" makes certain tactical compromises in order to obtain the EU's tens of billions of euros, as long as this party continues to govern, the risk of Poland's "Brexit" is extremely high. Tusk is the current leader of the opposition party, the former Polish prime minister and the chairman of the European Commission. It should not be sensational to come to such a judgment.
If Poland wants to completely get rid of the possibility of "Brexit", Tusk's prescription is to let PiS step down during the 2023 general election. However, there is a prominent contradiction in the current political ecology of Poland: on the one hand, more than 75% of Poles support Poland staying in the EU; on the other hand, PiS is always far ahead in the polls, and its support is always higher than that of the opposition parties. Two-digit height.
Obviously, the ruling party, which has maintained a high level of vigilance against the EU, which is constantly moving towards a "federal system," has not lost the support of the majority of voters. This seemingly contradictory but not contradictory phenomenon shows that the EU form that Poles prefer most may be a loose "confederation", an EU that can keep them free to walk in Europe while also retaining their sovereignty to the greatest extent possible. .
Poles' cherishment of their sovereignty has been particularly prominent in the recent refugee conflicts on the border with Belarus. Brussels has repeatedly stated that as long as Warsaw is willing, the EU can send the EU Border Service and EU Police Service to help maintain order on the border between Poland and Belarus. However, the Polish government turned a deaf ear to it and was unwilling to "lead wolves into the house" and allow the EU authorities to intervene in the Polish border to maintain stability. I would rather "tighten your belt" and mobilize more than 15,000 police forces to guard the country's borders, rather than let Brussels get involved in Poland's sovereignty affairs.
But the expectations of most EU countries for Poland are not this standard. The European Parliament, the European Commission, and the European Court of Justice will not relax their pressure on Poland. Under high pressure, whether PiS will oscillate, and whether there will be changes in public sentiment is still unknown. But one thing seems certain. Poland will not "Brexit" politically in a short time. Even if it wants to "leave", it will be after 2023.
