Has Poland ever been to the EU?
The question seems to have a rhetorical sense, or perhaps only a moral sense, under the key of the interpretation of EU values. But that's not the case, and the problem is legal, and it's also very serious.
First you need to understand what the Polish Constitutional Court said. Unlike other European courts, which have limited themselves to saying that the constitution prevails (it also happens in Italy, only that the constitution itself then recognizes the treaties and the circle closes), but they have also added two rather serious things.
- The first is that the treaty is unconstitutional in several points, concerning human rights and other things.
- The second is that it was also at the time of his signature.
There is a problem here. Because the signing of a treaty, many would say, is in itself an "act of law". Whether a minister or prime minister (executive power) goes to sign it, after a vote in parliament or a referendum, the signing of the treaty is exactly like a law. It is something you do and it becomes law.
As such, even the signing of a treaty follows these rules: if, for example, Italy were to sign a treaty that obliges it to kill all blond people, being clearly unconstitutional, the treaty itself would not have followed, and therefore the signature would not be in turn constitutional.
In practice, the signature itself would not be valid: this is done by those who negotiate it with the other party before the treaty.
What does it mean?
It means that some jurists doubt that Poland has NEVER BEEN in the European Union.
W. Munchau writes:
In its ruling last week, the Polish constitutional court went beyond anything the German constitutional court has ever done. Declared art. 1 of the Treaty on European Union, the clause establishing the EU , not compatible with some chapters of the Polish constitution. He found the same for art. 19 TEU, establishing the CJEU. If claimed, this would constitute a legal Polexit. If a member state believes that the EU treaties violate its national constitution, it must change the constitution, convince the other members to accept a treaty change or leave the EU. The EU could, if it so wished, even claim, under international law, that this ruling automatically cancels Poland's accession treaty, and hence its accession to the EU .
In practice, the German constitutional court has not only said that there are any parts of the treaty that are illegal or to be renegotiated: it has said that the illegal part is the first article, that is, the very foundation of the EU. In short, according to Poland, the EU shouldn't even exist. In light of this ruling, it is even wrong for the Polish state to acknowledge its existence.
But what if some jurist (imagine that another state appeals to the European Court of Justice, asking to pay less money to the budget because Poland is not part of the EU), decided that things went just like that?
The Treaty of Lisbon does not provide for a procedure for the expulsion of a state, but in this case Poland would never have entered, so there would be no condition to expel it, and therefore it would not be a violation of the treaties.
The trouble comes when considering the consequences:
- should Poland pay back all the money it has received over the years? After all, they say, the signature was illegal because it was unconstitutional.
- Was the EU Partnership legitimate? After all, it operated by also containing Polish deputies.
The second point is the only point that can keep the EU from saying "okay, you've never entered, so we were wrong and goodbye". And that's probably what it does.
If any jurist could somehow clarify the fact that the EU parliament, which contains Poles, and the commission and also the Council (which contained the well-known Tusk), were legal because somehow it was a matter of Polish due diligence, then the game would get tough. The amount to be repaid would be priceless by the Poles, and if they were harshly isolated they would almost immediately end up in Russian hands, which the population does not like very much.
On the other hand, fighting is also risky because it may not be necessary: although some idiots say that the Poles, being children of a totalitarian regime, do not have the perception of democracy and freedom (I see this offensive banality written on many Italian newspapers, as well as some Germans), it must be remembered that Poland was the first crack of the Soviet empire ( Solidarnosh, anyone?), and that more than 80% of the population (if only for reasons economic) wants to stay in the EU.
The strategy that will be followed, therefore, will be to make the Polish people feel on the verge of leaving the EU. This can be done mainly on the eve of the next political elections, in 2023.
But the problem is that now a sword of Damocles hangs over Poland. It is enough for a single European nation to resort, for whatever reason, to the application of a rule against Poland (for example, to block European funds and have a larger share), asking "but did they enter, then?", and the court of justice will have to rule. And it is very likely that he will say that no, the signature in those conditions, later clarified by the Polish constitutional court, was void.
So far only the Dutch premier had such warlike intentions, but his job is to find consensus, and the Dutch are hostile to giving money to other nations. He could only appeal for electoral reasons.
So the problem is deeper than it seems: the fact that there are no deportation procedures in this specific case does not matter much, since it would be possible to argue that legally the signing of the treaty was not valid from the start.
And we also need to ask ourselves another question: what happens if a group of Polish fanatics, perhaps even helped by some nation like Russia, decides to ask the Polish constitutional court if, in the light of the pronouncement, the signature is valid?
This legal position "a delicate hair" of Poland means that the matter has been treated behind closed doors, obtaining the payment of a relatively small fine, but in politics no seed remains without fruit.
So the point, for jurists, is the following:
"Has Poland ever been to the EU?"