On why this is serious
Of course, the judgment of the Tribunal is not the first instance in which a constitutional or supreme court rejects the version of EU law primacy affirmed by the CJEU: many other courts in Europe have also qualified the impact and application of the principle of primacy in their domestic constitutional orders, and the Polish Constitutional Tribunal itself, well before becoming a ‘captured court’ in the hands of the political actors, had already established (significant) limits to primacy in its 2005 ruling on EU accession. And of course, the Tribunal was not either the first court to explicitly reject the authority of the Court of Justice and disobey a ruling of the latter: the Czech Constitutional Court in Landtova, the Danish Supreme Court in Ajos, and most famously and most recently, the German Bundesverfassungsgericht in the PSPP/Weiss case have done so in the past.

Yet, and with the disclaimer that any more detailed analysis will have to wait until the publication of the full judgment, I would argue that the challenge posed by the October 2021 ruling of the Constitutional Tribunal goes further than the position expressed by any of those other courts, for three different reasons. First, while most constitutional courts generally accept the primacy of EU law, even on constitutional norms, and only create an exception for a hard core of domestic constitutional law (often defined as the national or constitutional identity of that Member State), the Polish court stresses the primacy of the entire constitution on EU law, as point 1b) of the operative part of the decision suggests. Second, the Tribunal does not reject a specific ruling of the CJEU as the German constitutional court in the Weiss/PSPP case, but a body of key decisions on judicial independence based on Article 19 TEU. (Admittedly, though, in the Ajos case the Danish Supreme Court took a comparable position on EU general principles). Third and most crucially, the legal and political context is profoundly different: the Tribunal itself is an unlawfully established court, as the ECtHR – but even the ‘old’ Constitutional Tribunal – have made clear; and the decision was taken upon an application of the Polish Prime Minster, something that strongly suggests an explicit intention to create a direct conflict with European institutions and to pave the way for rejecting the application of the Court of Justice’s judicial independence case law. In simple words: the Polish institutions are clearly attempting to challenge the authority of the Court of Justice and of EU law, and they are instrumentally using the Constitutional Tribunal to achieve that goal. Ultimately, even if we accept that the concrete impact of this interpretative ruling might not amount to much, and that in doctrinal terms it might not be absolutely exceptional, there is no doubt that it warrants a robust EU reaction, again especially when considering the broader political context and background, and at the need to provide effective answers to the rule of lack backsliding process in Poland.

On why we need to take a deep breath
Starting from this necessary premise, I am of the opinion that a moment of reflection is needed – both in the EU institutions and in the academic and media debate – to study the judgment (considering the full reasoning is not yet available!) and to reflect on what the best response would be. This is, after all, what the Commission itself has made clear. In contrast, I find some of the early academic reactions unhelpful, and often legally and political unsound. Most importantly, the concept of Polexit does little to inform the discussion, or it even hijacks it. Allow me to be blunt: any suggestion that, with the judgment of last week (or even before that) Poland would have triggered Article 50 TEU, the provision that allows a Member State to withdraw from the Union, can hardly be taken seriously. It does not square with the text and spirit of Article 50 TEU, with the Vienna Convention on the Law on Treaties, and with the Court of Justice’s ruling in Wightman, where the CJEU clearly stated that a Member State cannot be forced to leave the EU against its will. Nothing in the judgment can be read as a notification of withdrawal under Article 50, and the same goes for its publication on the Polish Official Journal. In addition, I find the concept of a ‘legal Polexit’ equally unhelpful and unclear in its implications. Even after the ruling, most Polish courts continue to apply EU law on a daily basis, presumably giving it primacy where they should, and to protect EU and Polish citizens’ rights, and even if sometimes that requires brave efforts – and possibly explicit disobedience - from still independent judges. If we take the concept of legal Polexit seriously, that would probably have to stop, yet is that a desirable outcome? Finally, while I understand the spirit of the proposals made by Chamon and Theuns, and contemplating a mass withdrawal from the EU and the creation of a EU 2.0 without Poland (and Hungary?), or the use of enhanced cooperation mechanisms to isolate Poland, in my view they hardly help with finding effective responses to the concrete issues under discussion.

In general, the main goal of these proposals is to achieve some sort of exclusionary effect: to put Poland either fully outside the EU project, or anyway at its very borders. However, is this really what EU intervention should strive to achieve? To be clear: sanctions can and should be used, considering both the systemic rule of law issues in Poland, and the specific decision of the Constitutional Tribunal. But I would argue that those sanctions should have the ultimate objective of safeguarding and contributing to restoring the rule of law in the country, rather than only punishing, isolating and perhaps expelling Poland. It is no coincidence that the EU Treaties do not contain an expulsion procedure, in contrast to many international organisations including for example the Council of Europe: that solution would not be aligned with the Union’s claim to be a ‘constitutional’ entity, a Union of States and peoples that is founded on a set of common values. Ensuring those values across the Member States has become one of the raisons d’être of the entire integration project, and any Polexit solution would be a fundamental step back in the Union’s constitutionalisation process.

On what could be done
What to do then? How should the EU institutions react? Reflect, first. And then consider how existing mechanisms can be best used to give effective answers to the concrete challenge created by the Polish Tribunal and more broadly by the Polish’s attacks to judicial independence. We should in fact not forget that, thanks to the strengthening of the ‘values-protection toolbox’ that has taken place in the last decade, the EU is already endowed with robust mechanisms to protect the rule of law and EU values. The fact they have not produced always adequate and effective results speak more of the mistakes made in their activation than of the weaknesses of the mechanisms themselves. These mechanisms include most crucially Article 7 TEU, the infringement procedure, and the new budgetary conditionality regulation, as well as more generally funding conditionality mechanisms.

As for Article 7, the often-mentioned and often-criticized procedure that allows to ultimately sanction breaches of EU values, it is evident that the main obstacle – the requirement of unanimity in the European Council under Article 7(2) for the determination of a ‘serious and persistent’ breach of the rule of law – will still stand in the way even after the Constitutional Tribunal’s ruling. Hungary, and possibly other Member States, will probably continue to support Poland. Yet two other steps could be taken. First, the process under Article 7(1) TEU could be relaunched, with the goal of a final Council’s determination of a clear risk of a serious breach of the rule of law. Second, the Commission could in parallel, or instead, escalate the process by formally launching Article 7(2) TEU. To be perfectly clear: none of these two steps would be a game changer, nor can either of them lead to the imposition of sanctions. Yet, they would be more than symbolic: a Commission reasoned opinion under Article 7(2), perhaps with the support of the Parliament, could in fact produce consequences under the EAW system and more broadly could present to the broader public the European concerns with the rule of law system in Poland.

The Commission could then also launch new infringement actions under Article 258 TFEU. One action could directly target the decision of the Polish Constitutional Tribunal, using as a model the action launched in summer 2021 against Germany on the German Federal Constitutional decision in the Weiss/PSPP case. A second and perhaps more radical reaction would to target not only the decision itself, but also the unlawful composition of the Polish Constitutional Tribunal. Arguably, by failing to ensure the independence of the Polish constitutional court, and in particular the ‘established by law’ component, Poland is in breach of Article 19 TEU. The Tribunal is indeed one of the courts entrusted with the application of EU law in the Polish legal order (or ‘acting in the fields covered by EU law’), and Article 19 asks the Member States to ensure their judicial independence. An even more creative - and stronger - step could be a systemic infringement action targeting the reforms of the Polish judiciary as a whole, again based on Article 19 TEU: the Commission could try to connect the dots, so to say, and link together the different measures that are undermining judicial independence in Poland, bringing before the Court the systemic nature of the rule of law issues in the country. As a reminder, in case of non-compliance with one or more of these judgments, or of other previous infringements actions (including interim orders) based on Article 19 TEU, the Commission could then ask for the imposition of financial sanctions under Article 260 TFEU.

Finally, EU institutions could and should (continue to) use available conditionality instruments. Now, it is well known that the Commission has committed itself (in the much-discussed European Council conclusions of December 2020) to first develop guidelines, and then start implementing the new budgetary conditionality Regulation, only after the ruling of the CJEU in the annulment action brought by Poland and Hungary. One could wonder whether the new ruling would not be an adequate reason for reversing that position, which is only a political position, as the European Council conclusions are not legally binding on the Commission. Otherwise, the ruling of the CJEU will anyway come fairly soon, most probably in January 2022, and in case the Court would confirm the legality of the Regulation, the Commission could then take measures against Poland soon after that moment. It should not be forgotten, though, that under the Regulation the Commission will still have to demonstrate that the rule of law breaches in Poland affect the sound financial management of the EU budget, or the protection of the financial interests of the Union ‘in a sufficiently direct way’. Whether the ruling of the Constitutional Tribunal could produce those effects is an open question; but there are fewer doubts that at least some of the judicial independence issues in Poland could warrant the activation of the new Regulation. In the meantime, the Commission could then still continue to put pressure on Poland by relying on the conditionality clauses in the Recovery and Resilience Facility Regulation, and delaying the approval of the Polish plan until the government commits to take action to address the rule of law concerns expressed by the Commission and the Council under the European Semester.

Crucially, these three paths should not be seen as alternatives, but as complementary. Even so, one may wonder whether that will that be enough. My answer is that we simply do not know yet. But a combination of political, judicial, and ‘financial’ or budgetary responses to the challenges posed by Poland and its (illegally appointed) Constitutional Tribunal seems to me much more promising than stretching too far the interpretation of EU law provisions that clearly have a different purpose, or playing with complex ‘Polexit’ constructions detached from reality. It is also much more targeted to the core issue we are discussing: the protection of the rule of law in the EU and in (all!) its Member States. To conclude, perhaps a bit bluntly: more than ‘hot takes’, what we need are informed analyses of how to best tackle the challenges produced by the Polish Constitutional Tribunal ruling, and more generally by the Polish judicial reforms. Breath in, breath out, and let’s engage with those challenges.