As far as I understand it, an illegal contract is void, and the Polish Supreme Court has assessed that EU contract violates the Polish Constitution.
Why is Poland still considered an EU member state?
How is Poland's EU membership not void because of the EU contract violating the Polish constitution?
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6Treaties aren't contracts, and so principles of contract law aren't applicable. (There's a huge body of pseudo-legal nonsense that tries to treat every kind of law as a contract; hopefully that's not the perspective of what you've been reading.)– Nate EldredgeCommented Nov 10, 2021 at 21:11
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@NateEldredge The word Vertrag is used for both in German, probably contributing to the OP's confusion.– RelaxedCommented Nov 14, 2021 at 16:00
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3 Answers
Opinions vary a bit on interpreting the Polish court decision.
According to a more strict reading of the Polish court's announcement, they haven't declared any parts of the treaties illegal per se. They've only declared some CJEU decisions illegal in Poland. Under the treaties, Poland signed up to the acquis, but those decisions were taken after Poland became a member, so they don't fall under the acquis... and arguably the decisions were a little bit innovative in their interpretation of treaty provisions. (Although the Polish court rejected wholesale the CJEU interpretation of Article 19(1)--it's at most two decisions that are involved both taken after 2018.)
Several EU countries (including Germany in Weiss/PSPP and Denmark in Ajos) reject unbridled supremacy of EU law, to various extent[s]. If you read through the much more numerous articles that have been written about PSPP, you can find extremely conciliatory ones that speak of judicial dialogue, but others that conclude that the principles put down on paper by the German court "directly contradict the very idea of the European Union". And a third kind that applauds PSPP for stemming the never-ending bias that CJEU [supposedly] has towards granting EU institutions more powers.
answered Nov 11, 2021 at 0:41
As far as the EU is concerned, Poland will remain a member until it triggers Article 50 and the time limits run out (or a different date is mutually agreed). Article 50 leaves it up to each state to set the constitutional requirements for the Article 50 notification.
Hypothetically, the Polish supreme court could judge itself qualified under the Polish constitution to write and deliver the Article 50 notification, but it has not done so. If that were to happen, the EU would have to decide if they take such a letter by a court rather than a government at face value. The supreme court could also order the government to write the Article 50 notification. If the Polish government were to comply, it would be closer to the expected process.
But politically speaking, neither is a realistic option. The Polish government and their court do not want to leave the EU, they want a maximum of EU subsidies with a minimum of EU interference in their traditional values, and they want to win certain voter groups with their rhetoric.
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The Economist wrote a pretty good opinion piece about your last paragraph recently: "Poland is a problem for the EU precisely because it will not leave" Commented Nov 11, 2021 at 19:01
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Apologies. Where I am (the US), it's available for free if you register an e-mail address. Commented Nov 11, 2021 at 19:18
This is a large question but part of the answer is that not only is EU Law in conflict with the Polish Constitution but the two systems of law disagree as to which system of law has priority.
According to EU Law, EU law is supreme and the courts of Poland are duty bound to disregard the Constitution of Poland where it conflicts with EU law. So on this basis the EU Treaties (what you call the EU contract) is not illegal and Poland is still a member state.
According to the Polish constitution as interpreted by the Polish courts, parts of the EU treaties are contrary to the Polish constitution and therefore the courts of Poland are duty bound to disregard the EU treaties insofar as they conflict with the Polish constitution. As I understand it the Polish courts have not declared the EU treaties completely illegal - just certain parts of them. On this basis Poland is still a member of the EU but just not bound by some of its rules.
