Fatihhan Balaban

Traineeship Program Participant

 

Abstract:  Euroscepticism expresses negative attitudes and views towards European integration. In today's European politics, Euroscepticism finds a place for itself in political parties and social level. As a result of expressing Euroscepticism together with populism, another rising trend of European politics, the concept called populist Euroscepticism has emerged. In this study, the criticism of the rule of law that Brussels has directed to Poland in recent years, and the "superior law" debates arising from the conflict between European Union law and national law are discussed in the context of populist Euroscepticism. The possible effects of the debates on European Union integration and populist-Eurosceptic political movements are evaluated from different perspectives.

 

INTRODUCTION

The European continent has been the scene of many wars throughout human history. Some of these wars emerged from the internal political conflicts of the European states, and some of them emerged from the power struggles of these states with each other. These power struggles were not limited to the European continent, but continued in different parts of the world, especially in Africa, through the imperialist policy. Eventually, the political and economic strife between these states led to a world war that costed the lives of millions of people when a famous Serbian nationalist killed the Crown Prince of the Austro-Hungarian Empire. The reckoning of these states did not end with this war. 20 years after the signing of the Treaty of Versailles, a second world war started, this time much more violent.

Western European states, who wanted to prevent the reoccurrence of the social, political and economic problems caused by this war, aimed to prevent a future war between Europe's arch rivals Germany and France by establishing economic ties.[1] Thus, the European Coal and Steel Community was established. This economic initiative aimed to provide unity between European states in politics and law in the following years. After the agreements made for this purpose, an institutionalized union emerged in many fields. A set of criteria has been established that must be met by countries wishing to join this union. With the gradual expansion of this union and the commitment of the member states to abide by the values and rules of the union while joining the union, an integration has begun to be seen among these states. There have been opinions advocating that this integration within the European Union should be carried to a further stage.

On the other hand, in the historical development of the European Union, there have been some among the member states who oppose this integration or argue that it should be limited. Indeed, the European Union has become a serious bureaucratic structure and this situation has also affected the modern nation-state system brought by the Treaty of Westphalia, which is considered a turning point in international relations. Because the institutions in Brussels have started to be more dominant in the decision-making processes of the member states.

The member states have seen this as interference in their internal affairs or as an infringement of the autonomy right of a sovereign nation state. It is possible to come across voices against European integration in different periods of history in Europe. However, these voices have increased especially in the post-Brexit period. An example of this is Poland, famous for its populist political power and has faced Brussels many times in recent years for different reasons. As of today, Poland is seen as an illiberal crack in the integration process of the European Union with its neighbor Hungary. The subject of this study is the superior law and the rule of law disputes between Poland and the European Union. Thus, the tension between Poland and the EU has been handled with different dimensions and its possible effects on EU integration have been discussed.

 

1. POPULISM

In the literature, populism is known as a concept with no consensus on its definition. Indeed, many studies on populism begin with the concept problem of populism.[2] This concept problem naturally leads to the inability to reach a consensus on what populism is. In the doctrine, populism is defined by some as an ideology, some as a political discourse, and others as a political strategy.[3]  Different reasons can explain the difficulty of defining populism. One of the most important reasons for this conceptual confusion is that populism can find a place for itself in different political wings. Today, in European Politics there are left-wing populist parties such as PODEMOS in Spain and right-wing populist parties such as Alternative für Deutschland in Germany. This situation makes it difficult for populism to be specific to a single person or a single political ideology. In other words, the fact that people, movements and political parties defined as populists do not show regional and ideological similarity leads to definition diversity. In this study, instead of going into the concept problem of populism, it will only be stated which of these approaches towards populism is adopted and in what sense populism is used in the study.

Although there is no consensus on the definition, two words are frequently used in approaches in the doctrine. These are the people and the elite. Most of the definitions talk about the conflict of interests of the people and elites and put these two concepts at the center of the solution of the concept problem of populism. However, especially considering the complexity of today's political system, it is clear that it includes many different interest groups. In addition, the discourses of today's leaders, who are defined as populists, cannot be reduced to the duality of the elite and the public. In other words, populism is something that leaders and political parties "adopt" when acting in domestic and foreign policy. Therefore, contrary to those who think that populism is an ideology, populism is a tool adopted. In this case, we can say that instead of reducing populism to just defending the interests of the people against the elites, populism is essentially a discourse and this discourse is a tool used to ensure public support in policy making processes. Therefore, in this study, the concept of populism is approached as a discourse. Based on this, in this study, populism  is defined as a discourse that political actors use while trying to come to power and in the period after they come to power, claiming that they are defending the interests of the people against elites in order to get the support of large masses of people while implementing their policies.

This definition seems more accurate when looking at today's populist movements, especially the development process of populist movements in Europe. Because in Europe, both in the period after the collapse of the Soviet Union and when the extreme right was on the rise, populism appears as a discourse. Considering Poland in particular, Law and Justice Party (Prawo i Sprawiedliwość - PİS) came to power four years after it was founded in 2001. In this process, PiS built its discourse on the fact that the elites of the period after the collapse of the Soviet Union did not defend the interests of Poland. It also emphasized the Polish tradition and blended it with conservative-nationalist rhetoric.[4] In this respect, PiS is considered a right-wing populist party due to its domestic and foreign policy discourses.

 

2. EUROSCEPTICISM

Euroscepticism is also one of the concepts that there is no consensus in the doctrine on its definition. In this respect, it is similar to populism. However, especially in Turkish literature, the word euroscepticism is used instead of skepticism about Europe and the European Union. This misuse in international and Turkish sources is based on the fact that it is not clear what the euro contains, which is one of the words that make up the word Euroscepticism.[5]

For this reason, it is important to specify the meaning of the concept used in the study. Another feature of Euroscepticism resembling populism is finding its place in both right and left wing ideologies. Left-wing eurosceptic parties use the concept of Euroscepticism from an economic perspective to oppose the European Common Market and the neoliberal capitalist economic system. On the other hand, right-wing eurosceptic parties build their criticism on the defense of national identity and national sovereignty.[6]

Euroscepticism generally expresses hostility to the integration of Europe.[7] In this respect, it would be appropriate to consider Euroscepticism as an attitude rather than an ideology with doctrinal foundations. In this study, Euroscepticism expresses the negative attitudes  towards the integration process. This concept refers to the continuation of the EU integration in limited areas or the opinions against EU integration.

This attitude towards European integration can take different forms at political parties and public opinion. In other words, Euroscepticism may be soft or hard. Hard-Euroscepticism refers to opposition to integration and withdrawal from membership. On the other hand, soft-Euroscepticism is used to express opposition to some European policies by keeping national interests in the foreground while supporting EU integration and European Union membership.[8]

The Law and Justice Party can be considered as a soft Eurosceptic party. Because PiS does not directly react to the European Union and Poland's position in the EU, but to Brussels' criticisms and policies towards certain areas of Poland such as the rule of law, abortion, LGBTIQ rights, media freedom.

 

3. RELATIONSHIP BETWEEN POPULISM AND EUROSCEPTICISM

As can be seen in the discourse on populism and Euroscepticism, these are quite independent concepts. However, these are concepts that can be quite compatible with each other. The populist language is quite prominent in politics in Europe. This will be clearly seen when an analysis of the discourses of the political actors of this period is made. Euroscepticism can also coexist with populist rhetoric. However, the compability of these concepts cannot be explained only by the ability of populism to be articulated with other ideologies and political views. Such a choice would mean simplification of the relationship between populism and Euroscepticism.

The relationship between populism and Euroscepticism can be explained through the Brexit process. During the Brexit process, the populist strategy of the United Kingdom Independence Party (UKIP) enabled them to achieve the desired result. UKIP's messages on giving decision-making power to the people and the "people" emphasis in the referendum process are a successful example of the compatibility of populism with Euroscepticism.[9]The compatibility of populism and Euroscepticism can be explained on different grounds.

The first of these is the historical development of the European Union Integration Process. As functionalists point out, EU integration is governed by elites and interest groups that transcend national borders. National governments and the people are not active in the integration process.[10] This situation lays the groundwork for the underlying elite-people conflict, which forms the basis of populism. Therefore, when eurosceptics state that people and national governments are not effective in the integration process and that this process is carried out by the elite, they actually refer to populist discourse.

The chronic problems of the European Union can be cited as the second reason that harmonizes Populism and Euroscepticism. One of these problems is the EU's democracy deficit. Although there are opinions that argue that the EU derives its legitimacy from its members, the democratic legitimacy of the European Union is one of the important problems in the integration process.[11]

Robert Dahl points out some criteria for a democratic process, in his book 'On Democracy'. These criteria are; effective participation, voting equality, access to information, control of the agenda and adult involvement.[12] In order to meet these criteria, changes in the structure of the European Parliament may be considered. However, the basis of the democratic legitimacy problem of the European Union lies in the indifference of the European people's to political issues. So much so that the low turnout in elections in Europe is a well-known fact.[13] Despite this, this makes the argument that the European Parliament does not represent the people usable. Thus, it paves the way for "people" emphasis and naturally populism.

Another reason that strengthens the relationship between populism and Euroscepticism can be explained by the rise of the far right in Europe. Right-wing populism and Euroscepticism are not only compatible with each other, they complement each other. In fact, there have been studies that tried to combine these two concepts, claiming that the same logic underlies these two concepts.[14]  In this respect, it can be argued that right-wing populism and Euroscepticism are fed from the same source. Because when we look at the discourses of Euroskeptics, there is a distrust of EU institutions and EU integration. The basis of this distrust is the preservation of national identity and national sovereignty. From the perspective of right-wing populist parties, it is aimed to preserve the values of the people against an institution that is likely to harm the nation-state structure and national-religious values. At this point, it will be seen that right-wing populism and Euroscepticism meet.

As can be seen, the relationship between populism and Euroscepticism may arise for different reasons. However, no matter how it arises, these two concepts are quite compatible with each other. In this study, the intersection of these two concepts is defined as populist Euroscepticism.

Before examining the debate between Poland and the EU, it would be appropriate to briefly summarize the historical development of European integration.

 

4. HISTORICAL DEVELOPMENT of EUROPEAN INTEGRATION

Throughout history, there have been attempts to envision an integrated Europe. Many of these attempts have tried to do this through the use of force. In the period after the Second World War, the ideal of establishing an integrated Europe was tried to be realized through peace and cooperation.[15] In line with this ideal, a series of agreements were made between European states. These agreements envisaged a gradual integration process.

The first step taken for this purpose was the establishment of the European Coal and Steel community. The declaration prepared by the French Foreign Minister, Robert Schuman, on 9 May 1950, in line with Jean Monnet's proposal, enabled the European integration to begin through economic benefits.[16] Initially, this economic initiative, which six states started on the basis of coal and steel, was expanded with the Treaty of Rome. Under this agreement, the European Economic Community and the European Atomic Energy Community were established. Thus, the economic cooperation that started with coal and steel became more general economic cooperation.

In the following period, changes were made to ensure the synchronization of the institutions established for the establishment of economic cooperation, and the way for political integration was paved. The first initiative made for this purpose is the Treaty of Brussels. With this treaty, the executive bodies of the European coal and steel community, EAEC and EAC were merged. Thus, the European Communities were established as a result of institutional arrangements.[17] In this respect, it can be said that the Treaty of Brussels gives the signals of the European Union to be established in the future.

Afterwards, some changes were made in the Treaty of Brussels with the Single European Act and important gains were made for the European domestic market. It can be said that increasing the powers of the parliament in order to accelerate the process of realizing these gains constitutes the political ground for European integration. This political ground was embodied in the Maastricht Treaty. With the entry into force of the Maastricht Treaty in 1993, it brought some changes in the structure of the community in terms of institutional.[18] As a result of this agreement, a tripartite institutional structure emerged, including the Parliament, the European Council and the European Commission, which will last until the Lisbon Treaty.[19] Thus, the political aspect of the European Community was strengthened and it was named the European Union. In addition, the expression of union citizenship brought by Article 8 of the Maastricht Treaty, the ideal of European Integration to create a supra-national identity has been put forward.

These gains on the path of political integration were advanced with the Amsterdam, Nice and Lisbon Treaties and the legal grounds for the political integration of the European Union were laid. The effectiveness of the European Parliament was increased with the Amsterdam Treaty. In addition, the founding values of the EU were included in the Amsterdam Treaty and the sanctions to be applied in case of violation of these values by the member states were foreseen. In this way, the EU aimed to protect the rights of the citizens of the member states. In other words, it established a new relationship between the citizens of the European Union and its member states. In this respect, the EU, whose institutional structure was strengthened with the Amsterdam Treaty, gained a legal personality independent of the member states.[20] By 2001, the Nice Treaty was signed. Although this treaty did not bring fundamental changes, arrangements were made with the Nice Treaty to improve cooperation between member states, taking into account the enlargement of the EU.

It is not possible to say that European integration progressed smoothly from the establishment of the ECSC to the adoption of the Nice Treaty. As a matter of fact, the European Union is essentially composed of nation states. Each nation-state, on the other hand, prefers to look after its own interests first. When the integration process of the European Union is examined, it will be seen that the initiatives carried out especially for the purpose of creating a common market are successful. However, when the integration of Europe will gain a political and legal dimension, then problems begin to arise. It is possible to see this in the emphasis on national sovereignty and nation-state in the period of De Gaulle.[21] This situation shows that the biggest problem in the process of European integration is the desire of states to protect their nation-state identities and national sovereignty. In other words, while the member states of the union support economic integration to the extent that it benefits them, when steps are taken towards political and legal integration, they perceive that their national sovereignty and nation-state identities are under threat. At this point, it is worth dwelling on the experience of the "Treaty Establishing a Constitution for Europe". Because this initiative points to the ultimate goal of European Integration. More importantly, the fact that the EU constitution remained an initiative, that is, the rejection of the Treaty Establishing a Constitution for Europe has a special meaning in terms of Euroscepticism. Treaty Establishing a Constitution for Europe was rejected in the referendums held in France and the Netherlands. Populist politicians of both countries have a great share in this. As a matter of fact, the front that carried out the "no" campaign, especially in France, exploited concepts such as national sovereignty and national identity as much as possible. That's why, the EU constitution initiative is considered as one of the biggest victims of populism.[22]

On the other hand, the failure of the attempt to create a constitution for the European Union has made the European political elites to see that the conditions for a united Europe have not yet emerged. Thereupon, amendments were made to the "Treaty Establishing a Constitution for Europe" and the Lisbon Treaty was prepared. With the Lisbon Treaty, fundamental changes were made in the structure of the European Union. The values and objectives of the EU are clearly stated. The distribution of authority between the EU and the member states has been regulated. Although the Lisbon Treaty is an important milestone in the EU integration process, it cannot be said that it was implemented smoothly. As a matter of fact, the Lisbon Treaty was not ratified in the first referendum in Ireland. In addition, in the Lisbon Treaty negotiations, England argued that the Fundamental Rights Convention would affect its own labor law. Poland, on the other hand, argued that the declaration would legitimize same-sex marriage. Therefore, these two countries are exempted from these parts of the declaration.[23]

As can be seen, the European Union integration process is progressing in a rather painful way. Conflicts within the union have increased in recent years. Whether the European Union was a successful project began to be questioned more. New cracks began to form within the Union, and existing cracks deepened. So much so that for the first time in the history of the union, a member country left the union. Especially in the Brexit process, the success of the European Union project has been reviewed. Undoubtedly, these conflicts are about both the chronic problems of the European Union and the transformation in Europe. This transformation has economic, political, and social dimensions. Islamophobia and anti-immigrant sentiment have started to occupy the European agenda frequently in recent years. The extreme right-wing parties, fed by these problems, started to receive social support. The problems brought about by this situation also strengthened populist political movements. The articulation of right-wing populism with Euroscepticism has given birth to political parties and leaders who can directly oppose the EU institutions with a populist discourse.

 

5. PRAWO i SPRAWIEDLIWOŚĆ – EUROPEAN UNION CONFLICT

 

The Law and Justice Party in Poland is one of these populist-eurosceptic political movements. It is described as a right-conservative nationalist party. It is also known that the party has good relations with the Catholic Church.[24] PiS officials, who base their political discourse on the "Poles", “the Polish People”, “sovereignty,” and “independence”, say that they will only account to Polish people upon the criticisms of the Western European countries.[25] In addition, as stated at the beginning of the study, it is defined as a soft eurosceptic party. Recently, it has come face to face with Brussels over the rule of law and superior law debates. In fact, it can be seen that PiS has been eurosceptic since the beginning of Poland's negotiations with the European Union. The statements of the Law and Justice party officials, who were in power during the accession negotiations between the European Union and Poland, show their approach to the European Union at that time. In fact, these statements can be considered as the harbinger of the sensitivities and objections of the Law and Justice Party in the following years. For example, in the statements made by Kaczyński about the European Union negotiations in 2002, he stated that the European Union was offered a second-class membership to them. His attempts in those years were described as eurosceptic. A proposal for a constitutional amendment that clarifies that Polish law is superior to international law is one such initiative. This proposal of Kaczyński in 2002 is important in terms of showing Poland's approach to the relationship between national law and international law. In addition, the party's emphasis on maintaining the nation-state in the 2001 Election program and the party's expression of opposition to federal Europe at the 2003 congress also reflect their perspective on EU integration.[26] In addition, PiS requested reference to Christianity in the ‘Treaty Establishing a Constitution for Europe’ and the Lisbon Treaty.[27]

We have stated that the stance of the Law and Justice party during the European Union negotiations and the criticisms during the preparation of the European Union agreements are the harbingers of the party's stance in the following years. Accordingly, it can be said that the party has taken a stable stance in defending the concepts such as the interests of Poland and the values of Christianity. They have even targeted various groups such as vegans and homosexuals for not conforming to Polish identity and Christian values.[28]

PiS, which started out by criticizing the elites of the post-Soviet era at the beginning of the 2000s, further reinforced its populist discourse in the following years. They stated that it was their job to clean up the corrupt elites who were detached from their Christian and patriotic values. [29] For this purpose, they made personnel changes in the media, judiciary, and public institutions in order to replace the “bad elite” with the “good elite,” which represents the interests of the nation.[30]

Thus, the party increased its control over the media and judicial organs. In particular, the judicial reform they initiated after coming to power alone in 2015 aimed to increase the party's control over the judiciary. Some articles in this reform initiative have been criticized by the EU as PiS aim to interfere with the judiciary. Despite all these criticisms, the Polish government did not take a step back, and article 7 was applied for the first time in EU history.[31]

Although the PiS government stated that a regulation would be made in the relevant reform upon these sanctions threats, a law was enacted in 2019 that violated the independence of the judiciary. Thereupon, a violation procedure was initiated by Brussels, and by 2021, the European Union Court of Justice fined Poland 1 million euros per day. This decision deepened the crisis between Poland and the European Union. The PiS government argued that some of the articles in the EU treaties were contrary to the Polish constitution. The Polish Constitutional Court, examining the relevant articles at the request of the Government, ruled that these articles were unconstitutional. This decision of the Constitutional Court led to a crisis of "superior law" between Brussels and Warsaw.[32]

As a result, there are two separate issues between Poland and the European Union, one arising from the rule of law and the other arising from the superior law discussions, which are strongly related to each other. These two terms are used interchangeably due to a misconception that I think stems from the similarity of the Turkish equivalents of the terms. The main conflict between Brussels and Warsaw stems from the violation of the rule of law. In other words, at the root of the Brussels-Warsaw tension are Poland's acts against the rule of law principle, which is one of the EU values. At the forefront of these acts is the judicial reform works of the PiS government. The contradiction of some of the articles in this reform with the principle of the rule of law laid the groundwork for superior law discussions. At this point, the main disagreement is centered on the compatibility of national law with EU law. The crisis of superior law widens with the decision of the Polish Prime Minister Morawiecki to not withdraw his appeal to the Constitutional Court, and as a result, the Polish Constitutional Court's decision to emphasize the supremacy of the Polish constitution.

In summary, the basis of the Polish-European Union conflict is the violation of EU values and the rule of law. The supremacy of EU law over national law was first discussed in the context of the compatibility of national law with EU law during the judicial reform debates. The Supreme Law debate, on the other hand, was shaped after the decision of the Polish Constitutional Court and the statements of the Polish Government supporting this decision. In order to understand the relationship between Poland-EU tension and populist Euroscepticism, it is necessary to evaluate the legal problems that lead to these discussions.

 

6. LEGAL QUESTIONS

6.1. The Rule of Law Debates

The concept of the rule of law refers to the observance of the bindingness of law in individual-state relations. The rule of law principle, on the other hand, contains many principles within itself. These principles can be listed as the principle of legality, the principle of certainty, the principle of equality before the law, the principle of independence of judges. The independence of judges, on the other hand, requires the judiciary to be independent of the legislative and executive branches. In addition, in order to talk about the independence of the courts, it is necessary to establish the conditions for the judges to carry out their duties independently. For this reason, many constitutions have envisaged assurances that will provide the legal guaranty of judges. These guarantees aim to protect the personal rights of judges and prevent arbitrary interference with them.

The judicial reform in Poland is mainly aimed at designing the judiciary. In addition, the authority given to the discipline committee puts the legal guaranty of judges at risk. In this case, it can be said that the judicial reform in question violates the independence of the judiciary and, therefore, the rule of law.[33]

The rule of law principle is accepted as the most fundamental value of the European Union. The expression "Violation of European Union Values" has been frequently heard in recent years, especially in criticisms of Hungary and Poland. In fact, it is brought to the agenda to impose sanctions on countries violating the European Union Values. Therefore, it can be said that these have a normative value.

The term Rule of Law is counted as one of the values on which the Union is founded in the second article of the Treaty on European Union. However, in the relevant article, it is not stated what kind of sanctions will be applied in case of violation of these values. Sanctions take place in the famous Article 7 of the Treaty on European Union. Under the heading of Article 7, there are two provisions to be applied. The first is that there is a clear risk of a serious violation of EU values, and the second is that there is a serious and persistent violation of EU values. In the first case, a four-fifths majority is sought, and a declaratory judgment is given. In the second case, unanimity is required, and it is decided to suspend the rights of the country where the violation was committed.[34]

The aforementioned article 7 was used for Poland for the first time in EU history. In addition, it does not seem likely that the relevant article will be used against Poland in terms of the second case. In order for the sanction in the second article to be applied, unanimity is required. Poland, on the other hand, is not the only addressee of the criticism of the rule of law. Hungary is facing the EU for similar reasons. Therefore, it’s possible for these two countries to support each other when it comes to imposing sanctions on the other under Article 7.[35]

In the discussions between Poland and the EU, Hungary announced its support to Poland. In such a situation, it was not possible for the EU to operate Article 7 effectively. However, there are other mechanisms that the EU can use against the state that violates its obligations arising from membership. One of these mechanisms is the infringement lawsuit. It is possible for the infringement case to be brought by the commission against the state that does not fulfill its obligations or by one of the member states. In fact, the decision rendered at the end of the infringement case process is in the nature of a declaratory ruling. Accordingly, the Court of Justice of the European Union (CJEU) cannot decide what kind of measures a member state should take based on the declaratory judgment. The member state is obliged to take the necessary measures upon the decision of the CJEU. If this obligation is not fulfilled, financial sanctions are imposed on the relevant state.[36]

As a result of the discussions on the rule of law between Poland and the European Union, the European Union Commission filed an infringement case against Poland. The Commission argued that the powers that the PiS government granted to the disciplinary department of the high court with the judicial reform violated the independence of the judiciary and the rule of law principle. CJEU requested Poland to amend the relevant articles in the judicial reform. After the Polish government did not take a step back, the European Commission claimed that Poland did not take the necessary measures upon the decision of the CJEU. Thereupon, in the official letter of notification sent to Poland, it was stated that the articles in the judicial reform were not compatible with European Union law.[37] The steps of the European Commission were described as an attack on Poland by the Polish Minister of Justice.[38]

While the discussions on the rule of law continued, the statements made from the Polish front laid the foundation for a new crisis. The rule of law crisis has taken on a new dimension with the conclusion of Prime Minister Morawiecki's appeal to the Polish Constitutional Court on whether the EU has the power to prevent Poland from regulating the judicial system, while the rule of law debate continues. Because, in its decision, the Polish Constitutional Court stated that the CJEU violated the principle of supremacy of the Polish Constitution and the protection of sovereignty in the European integration process.[39] Prime Minister Morawiecki interpreted the threats of sanctions from the Brussels front upon the decision of the constitutional court as blackmail and declared that European Union law was superior to Polish law "in some areas".[40] Shortly after these statements, Poland was fined 1 million euros per day, which is a record in EU history, for not complying with the CJEU decision. In addition, the EU's re-initiation of legal proceedings on the grounds that the Polish constitutional court did not implement the binding decisions of the CJEU increased the tension again.[41]

 

6.2. Superior Law Debates

Superior Law debates contain many problems. It can be said that there are two main reasons for these problems. The first of these is to association the supremacy of EU law over national law with national sovereignty.[42] This situation makes it difficult to regulate the relationship between EU law and national law with a hierarchical binding document. In other words, the attempt to position EU law above national law triggers nationalist and eurosceptic reflexes. It is possible to observe the examples of these reflexes in the experience of Treaty Establishing a Constitution for Europe. Even more importantly, the fact that although the supremacy of EU law is regulated in the ‘Treaty Establishing a Constitution for Europe,’ the absence of this article in the Lisbon Treaty shows that it is intended to prevent reactions. This issue has great importance for the constitutionalization of EU Law and EU integration. Therefore, for EU integration to be successful, member states must adopt this situation. However, the supporters of EU integration, who see that the clear expression of the rule of EU law draws backlash, refrain from expressing it openly in the binding documents. Even though this issue is mentioned in declaration no. 17 of the Lisbon Treaty, the said document is not binding. [43]

The second reason that gives rise to superior law discussions stems from the sui generis nature of EU law. This nature of EU law makes it difficult to clarify the relationship between national law and EU law. This situation makes it controversial whether there is a hierarchical relationship between EU Law and national law. This discussion also raises another problem. The fact that EU law cannot be positioned hierarchically leads to the question of how to act in case of a conflict between EU law norms and national legal norms. This question is tried to be resolved within the framework of the principle of priority of EU Law. The principle of priority means that national law is not applied in case of conflict between EU Law and National Law.[44] However, even this principle is not sufficient to resolve all the questions arising from superior law debates. Because the principle of priority of EU law is not clearly regulated in EU treaties. The priority principle is developed by the jurisprudence of the CJEU.[45] In addition, the relationship between EU Law and National law rules is not regulated in the constitutions of the member states in a common way. There are regulations in the constitution of some countries that show that European Union law is given priority. For example, the Portuguese constitution regulates the priority of Union law in the basic principles section of its constitution. It is understood that in the 4th paragraph of the 8th article of the Portuguese Constitution, which is titled International Law, the union law will be given priority. [46]It is seen that some countries accept the principle of priority of EU law with articles that give priority to international law. For example, in Article 55 of the French constitution, it is regulated that the agreements duly ratified have a superior authority over the law.[47] Article 91 of the Polish Constitution is similar to the French Constitution.

            ‘’ If an agreement, ratified by the Republic of Poland, establishing an international         organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.’’[48]

Based on this regulation, it is possible to say that the Polish Constitution adopts the principle of the priority of EU law. However, the decision of the Polish Constitutional Court explained that EU law is a part of Polish law and must comply with the Polish Constitution, which is the highest law in Poland.[49] This decision shows that the court hierarchically placed Polish law above EU law. The legal basis of this decision of the Polish Constitutional Court is Article 8/1 of the Polish Constitution. The article stated that the Constitution of Poland is the highest law of the country.[50] Based on this article, it is understood that the Polish Constitution does not fully accept the principle of the priority of EU law.

The principle of priority does not have the effect of canceling or invalidating a norm that is not in line with EU law. The principle of priority requires that a rule of national law that conflicts with the law of the union should not be applied.[51] Therefore, it can be said that this principle imposes an obligation on the person who will apply the law, namely the judges.

It has been stated that the principle of priority is a principle developed with the jurisprudence of the CJEU. In fact, problems with the application of this principle also arise from this situation. As a matter of fact, the absence of a clear normative regulation makes it difficult to draw the borderline of the union law. CJEU case law indicates that the principle of the primacy of EU law is applicable to all national law. For example, in the Internationale Handelsgesellschaft decision, the CJEU stated that EU law has priority over German Constitutional law.[52] Looking at the Polish case, there is a conflict between a case-law ruling that EU law takes precedence over constitutional law and a constitutional article stating that the Polish Constitution is the highest law in the country. If this situation is explained from the view that accepts the existence of a hierarchical relationship between EU law and National Law, it is necessary to give priority to EU law.[53] However, if this view is accepted, another problem is encountered. This problem is related to where the case law of the CJEU will be located in the hierarchy of norms. According to the 19th article of the Lisbon agreement, “The CJEU ensures that the law is respected in the interpretation and implementation of the agreements.”.[54]It can be said that the CJEU's jurisprudence also serves this purpose. However, it is unclear where the ECJ case-laws will be placed hierarchically. If the view that there is no hierarchical relationship between EU Law and national law is accepted, the problem here arises not from the hierarchy of norms but from the conflict of norms.[55] This approach seems more appropriate if we proceed from the definition and purpose of the priority principle. Accordingly, since the principle of priority is applied in case of conflict of norms between national law and EU law, handling the issue in terms of the hierarchy of norms will further complicate the explanation of the solution of the legal problem.

Another noteworthy opinion regarding the principle of priority is that this principle is regulated indirectly in Article 4/3 of the Treaty on European Union.[56] In the said regulation, the principle of sincere cooperation is mentioned. It can be said that the wording of Article 4/3-b of the European Union Treaty supports this view.

            ‘’The Member States shall take any appropriate measure, general or particular, to          ensure             fulfillment of the obligations arising out of the Treaties or resulting from the        acts of the institutions of the Union.’’[57]

As a matter of fact, the principle of priority imposes an obligation on judges not to apply the norm that conflicts with EU law. Within the framework of these principles, the view of the Polish Constitutional Court that the EU treaty is part of Polish Law and therefore must abide by the Constitution, which is the country's highest law, is inaccurate. Because, as a requirement of the priority principle, in case of conflict between EU law norms and national legal norms, national legal norms become inapplicable. Taking an opposite attitude would also violate the principle of honest cooperation.

As can be seen, legal problems between Poland and the EU can be resolved within the framework of the principles of the European Union. The fact that the principles, which are regulated by the jurisprudence of the CJEU and guaranteed by the EU Agreements, are the subject of much debate shows that the issue goes beyond the legal dimension. In other words, although the debate between Poland and the CJEU is based on the conflict of legal norms, it would be more accurate to say that the main conflict here is not between norms but between European integration and populist Euroscepticism.

 

 7. EVALUATION of the DEBATES

In order to understand the extra-legal dimension of the conflict between Poland and the EU, it is necessary to evaluate the role of the CJEU in EU integration. Indeed, the CJEU is one of the most influential institutions in the realization of EU integration. It can be thought that it shows this effect mainly in the interpretation and application of EU law. However, the main importance of the CJEU is in protecting the EU values and having mechanisms to ensure that the members who are thought to deviate from these values comply with these values. In this respect, the CJEU is an effective weapon in the realization of the integration of the European Union. It can be said that the abstract principles in the EU treaties brought this effectiveness to the Court of Justice. It would not be an exaggeration to say that the most important of these principles is the rule of law. This is related to the nature of the rule of law principle. There is no clear definition of the rule of law in EU treaties. The lack of a clear definition of the concept has given it an ambiguous character, and therefore it has been evaluated as an umbrella principle that includes other founding values listed in article 2 of the Lisbon Treaty.[58] This situation makes the founding values of the EU suitable for broad interpretation. In this way, the European Union has the opportunity to indirectly intervene in the internal affairs of the member states through the court of justice. This situation can be evaluated as interference in internal affairs or violation of sovereignty by member states. As a matter of fact, in the case of Poland, the Constitutional Court made such an interpretation. Poland Constitutional Court stated that EU organs intervened in areas to which Poland had not transferred its sovereignty.[59]

Secondly, the Poland-EU debate should not be considered independent of the recent experiences and current political problems of the European Union. The first of these experiences is Brexit. The Brexit process has a historical significance for European politics. The first is the success of the eurosceptic political movement that has existed in the UK for many years. The second is that the Brexit process shows how effective the populist rhetoric will be. It is unthinkable that this situation does not make the European Union more sensitive to populist and eurosceptic political movements. Therefore, the Polish-EU tension should not be evaluated independently of the European Union's struggle against the populist front (Poland-Hungary). At this point, it should be taken into account that the support of the Polish people to the European Union is quite high. As public opinion polls clearly show, the public image of the European Union is quite positive, although there is tension between the Polish government and the European Union. Nearly 90 percent of the Polish people support the European Union.[60] In addition, EU funds have great importance for the Polish economy.[61] Therefore, even if a long-term conflict with the European Union enables the right-wing populist PiS to attract nationalist-conservative voters and consolidate its current base, being deprived of EU funds, in the long run, will make the party's job more difficult. As a matter of fact, the European Commission has stated from the beginning of the discussions that it will use all tools to protect the rule of law.[62] Therefore, at this point, it is possible to say that PiS cannot maintain its disagreement with the EU for a long time, and an uncompromising stance may cost its power. If the PiS government chooses such a path, it may lead to the possibility of weakening the Populist-Euroskeptic bloc within the European Union.

The Poland-EU debate shows its real importance in terms of the integration and enlargement of the European Union. As we mentioned in the section on the historical development of European Integration, the constitutionalization of EU law is very important for the success of EU integration. Again, as the experiences in the integration process show, legal steps that will position the European Union above the nation-state cannot be easily taken. For this reason, pro-integration proponents refrain from expressing the supremacy of EU law in EU agreements. Therefore, they go to form the steps that will ensure the legal integration of the European Union through the Court of Justice. The magnitude of the reaction against the decision of the Polish Constitutional Court stems from this. In fact, the event in question enabled the Court of Justice to set a precedent on the principle of priority of EU law and delegation of authority. In this respect, the Polish-EU tension can be considered as an opportunity to make a breakthrough rather than a setback in EU integration. Of course, in order for this breakthrough to be realized, the European Union must first "defeat" the populist eurosceptic bloc. Failing to do so, that is, the European Union's sanctions and funding cuts fail to deter the PiS government, which will encourage Eurosceptic political movements in other European countries. The nature of the issue, which is suitable to be associated with concepts such as national sovereignty and independence, makes the issue suitable for right-wing populist discourse. In a poll conducted in Poland, although 90 percent of the public supports the European Union, 35 percent think that EU membership restricts Poland's sovereignty too much. In another survey, 34% of Polish people think that the government should ignore the EU's proposals and solutions for judicial reform.[63]This shows that a society with high EU support does not have the same support when it comes to national sovereignty. Therefore, if eurosceptics in other European countries can successfully build a right-wing populist discourse, it is possible for the eurosceptic bloc to expand.

The Polish-EU tension has particular importance for the enlargement of the European Union. Because the rule of law is at the center of the Balkans enlargement, as stated in the enlargement strategy of the European Union.[64]The European Union's compromising on the rule of law, which it considers so important and accepted as the predominant condition for the membership of the candidate countries, will make the credibility of the European Union in the eyes of the candidate countries questioned. Therefore, the determined attitude of the European Commission in the Poland conflict is important in terms of showing the candidate countries how important EU values are. In addition, considering the realities of the Balkan geography, it should not be forgotten that ethnic nationalism is still alive in this geography. This situation will make it difficult for the Balkan countries to adopt the principles and institutions of the European Union. Accordingly, it can be said that the decision of the Court of Justice has two aspects in terms of the EU's enlargement in the Balkans. First of all, the European Union shows the importance of EU values for the Union and what kind of sanctions will be applied in case of violation of these values. Secondly, it redefines the concept of the rule of law, which is central to the enlargement strategy.

Finally, Polexit scenarios can be evaluated. In fact, the Polish-EU tension has been considered from the very beginning as a new crack in the European Union, a second Brexit. There is no mechanism in the European Union agreements, such as expulsion from the union. Additionally, it is not considered very realistic for Poland to leave the European Union voluntarily. When the share of EU funds in Poland's economy and the share of European Union member countries in its foreign trade are considered, leaving the European Union will not be a wise decision for the Polish economy. On the other hand, since the public support for the European Union is quite high, a possible Polexit referendum will result in "no". As the PiS government has denied the Polexit allegations in its statements, it does not seem possible for Poland to leave the Union in the short term.

 

8. CONCLUSION

To sum up, it is possible to resolve the debates on the rule of law and superior law between Poland and the European Union within the framework of the jurisprudence of the Court of Justice and the principle of sincere cooperation. In this study, the legal dispute in question is evaluated in the context of populist Euroscepticism.

As a matter of fact, PiS's skeptical approach to the EU has not emerged in recent years. Since its establishment, the party has prioritized concepts such as Polish sovereignty, independence, and Christian values in its relations with the EU. Conflicts with the European Union started with the PiS government's personnel changes in state institutions and efforts to clean the media and judicial organs from the "bad elites". PiS tried to legitimize these political moves by claiming that it defended the will of the people against the communist elites. Therefore, it can be said that the PiS government is one of the political movements at the intersection of right-wing populism and Euroscepticism.

The activities of PiS have been evaluated by the European Union bodies as a violation of the rule of law. In addition, the PiS government's refusal to change the articles of the judicial reform that are not in compliance with EU law and questioning the principle of the rule of law in the EU increased the conflict between the parties. Hungary's declaration that it will provide veto support to Poland against EU sanctions has transcended the legal dispute and turned the issue into a fight between the European Union and the populist-eurosceptic skeptic front.

This fight will have important consequences for the integration and enlargement of the EU. The failure of EU sanctions to deter the Populist-Eurosceptic bloc will have implications for the union and the candidate countries. The PiS government's uncompromising attitude despite the sanctions and threats from EU officials will encourage the Eurosceptic movements in the Union. The failure of the European Union to adequately defend the rule of law, which it put at the center of its enlargement strategy, will discredit the European Union in the eyes of the Balkan countries.

Taking a step back by the PiS government will provide an opportunity for the European Union to show how much the EU cares about its values. In addition, the possibility that the PiS government's struggle with the EU may cost its power, and it may leave Hungary alone against the EU. This will mean the weakening of the populist-eurosceptic bloc.

Finally, it does not seem likely that these discussions will lead to dissolution in the EU in the short term. On the contrary, the dependence of Poland's economy on the EU and EU member states shows that the European Union has a strong hand. Therefore, taking a step back and changing the constitution or judicial reform of the PiS government will be an important gain for the integration of the EU.

*Photograph: Poland′s top court rules against primacy of EU law | News | DW | 07.10.2021

 

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