Relations between Poland and the EU have been tense since at least 2015, when the Polish conservative party “Prawo i Sprawiedliwosc” (“Law and Justice”) won the elections after a 8-year rule by the pro-European “Citizen platform”. These relations took another turn for the worse when a few weeks ago the Polish Constitutional Court deemed some European laws incompatible with the Polish Constitution. In the spate of reactions that followed, some called the decision of the Polish court “a nuclear strike on the European Union”.

Today the EU met to discuss the issue and expressed deep concern. “The European Commission is, at the moment, carefully assessing this judgment,” said Ursula von der Leyen, the president of the European Commission. “We cannot and we will not allow our common values to be put at risk. The commission will act. This ruling calls into question the foundations of the European Union. It is a direct challenge to the unity of the European legal order.”

Mrs von der Leyen also explained how the EU could punish Poland. The first option would see European Commission legally challenging the decision by the Polish Constitutional Court.

In another option the EU would withhold budget funds and even post-pandemic recovery aid from Poland. “This is European taxpayers‘s money. And if our Union is investing more than ever to advance our collective recovery, we must protect the Union budget against breaches of the rule of law”, said von der Leyen .

The application of Article 7 of the EU’s treaties would be a third option. Under this article rights of member states, including the right to vote on EU decisions, can be suspended.

The Polish prime minister Mateusz Morawiecki was also present and pointed out that there is a “pro-European majority in Poland” and that his government is part of it.

It‘s hard to say he was not telling the truth. Fears expressed in the last couple of weeks that the decision of the Polish highest court meant that Poland was somehow considering to leave the EU are baseless, overblown and used in a manipulative fashion.

Morawiecki went on to accuse the EU of double standards towards Poland, dismissing criticism of his government as “unfair and biased”.

The EU argues that its treaties have precedence over national laws. Hence EU members and signatories of the EU treaty accept the superiority of EU law.

Poland is learning to be confronted with the full implications of being a EU member. Poland, together with several other former Soviet block countries, was admitted to the EU in 2004, in an arrangement that at the time seemed to make everyone happy. Countries like Poland, Czechia, Hungary and Slovakia were getting access to large EU funds, Poles, Lithuanians, Latvians and the citizens of the newly admitted countries obtained freedom of movement and employment within the EU. In exchange, Western companies got access to the poorer, but full of potential for growth, Central and Eastern European markets and cheaper labour force. It looked like an almost perfect union.

What Poland is now struggling to deal with is that the fact the EU membership means loss of sovereignty. By design, the national governments of single EU members are subordinate to the EU-wide rules and regulations. There cannot be full independence within the EU. Any government of any EU member state, no matter how strong its democratic support and popularity, will be constrained by European directive. It is the way the EU is built. It is not exactly a United States of Europe because formally every country has its own government and clearly in today‘s Europe national identities are stronger than a shared European identity, but the legal hierarchy set by the EU treaties makes this clear: today‘s EU is not just a loose federation of independent countries free to act and govern how they see fit, but a complex organism where laws made in Brussels are more important than the laws made at home. Anyone who thinks otherwise is being wilfully naive.

Contrary to what may appear today, Poland is not the first country to have challenged EU law supremacy. Last year the German Constitutional Court ruled against the European Central Bank, accusing it of overstepping its mandate with bond purchases in the middle of covid emergency. The European Court of Justice (ECJ) had already approved the scheme.

As a result, the EU started an infringement proceeding against Germany. This summer the German government rebuffed the legal steps brought against it. Theoretically the European Commission could now take Germany to the Court of Justice of the European Union. However, the European Commission, led by Mrs von der Leyen, seems to be now more concerned with Poland than with Germany.

Choosing effective ways to punish Poland may work as a deterrent towards other member states that may feel tempted to challenge EU law. Punishments, however, are not necessarily the best form of incentive. For one thing, the EU is bent on showing presenting itself as a friendly organisation of free states that have freely chosen to join it exclusively for their own benefit. The logic of punishment or sanctions would challenge that benign image of the EU as a noble ideal. It is an instance that we saw also with Brexit, when the EU appeared to want to “punish” the UK for having chosen to leave. Magnanimous it was not.

Secondly, punishments inevitably generate resentment. Today the vast majority of Poles is clearly pro-European, even if sometimes they don‘t appear to share some key EU values like unconditional support for LGBT people and refugees. The traumas of history made most Poles enthusiastic Europeans. But if the EU responds too harshly, anti-EU sentiment, already on the rise in Poland like in many other countries, could become too strong to contain. Poland feels that it cannot go it alone and will probably seek a compromise with the EU. But other countries may look at the Polish example and see that if the EU acts as a clumsy school master all too ready to choose punishment over consensus, all talk of unity and solidarity is nothing but empty rhetoric.

Stefano Di Lorenzo @StefanoDiLoren5