The Rule of Law in the European Union – A critical analysis of Poland’s rejection of the EU legal order

Abstract

The European Union is founded on certain core values as expressed in its constitutional framework. One of the fundamental values is the adherence of the rule of law, which constitute a legal obligation across all 27 member states. The rule of law as envisaged by the EU, is aimed towards ensuring good governance and upholding fundamental rights and freedoms for its citizens. Drawing on the many previous European wars, conflicts and the genocide by Adolf Hitler’s Nazi Germany, the post-World War II EU legal order aims to pre-empt similar situations happening again. In the 2010’s concerns and discussion regarding rule of law and democratic backsliding began to gain traction in the EU. Legislative changes in Hungary seemed to entrench the ruling Fidesz party led by Eurosceptic Hungarian Prime Minister Viktor Orbán. European institutions held that changes made to the national judiciary, which saw the lines blur between politicians, the executive and the judiciary, amounted to a violation of the EU legal order and its rule of law obligation. In 2015 the Polish right-wing, populist Eurosceptic political party Prawo i Sprawiedliwość swept to power in Poland, winning both the presidency and a parliamentary majority. The new Polish government has since 2015 been on a collision-course with the European Commission and the Court of Justice of the European Union over legislative changes to the national judiciary, which according to the EU breaches the rule of law by dismantling checks and balances. In October 2021, the Polish Constitutional Tribunal rejected the principle of primacy of EU law as a response to the criticism from European institutions. The ruling saw the EU-Polish tug-of-war over the rule of law sharply escalate. The rule of law in the European Union and the recent events in Poland is of greater public interest as it comes in a volatile global situation. The ongoing Covid-19 pandemic, global terrorism, migration and potential geopolitical conflicts in Europe are all factors which affect the European Union. Domestic rifts between member states and the EU political leadership risks eroding the impact of EU law in member states. By using a multi-faceted interdisciplinary methodological approach, through the doctrinal legal method, the comparative legal method and document analysis, various contrasting perspectives are interpreted with a broad epistemological understanding in mind, in order to explain the situation. This study will investigate the situation through critical analysis and answer what rule of law backsliding tell us about EU values, how the rule of law is enforceable from an EU perspective, and how rule of law backsliding has been developing in Poland and why. The rule of law in the EU is a highly complex and opaque issue. Poland’s standpoint can be traced to its history and the constitutional culture in part owing to the communist-era weak legal culture and a modern political will geared towards national sovereignty. Concerns about the efficiency of enforcement of the EU’s own legal framework point towards larger issues relating to the legal structure of which the EU is built upon. In the face of a global volatile state, it can be considered imperative the European Union be adequately prepared to enforce its own structure, or risk internal disintegration.