A few comments after yesterday's ruling of the Polish Constitutional Court, which has opened one of the most severe constitutional crisis in the history of #EU integration.
The ruling is quite clear: the @EUCourtPress's interpretation of the Treaties, and the power of national courts to set aside national rulings and laws, including the Constitution, which breach of EU law, is contrary to the Polish Constitution.
There is nothing to fix here by the #EU. The Court of Justice will not change its case-law on judicial independence for obvious reasons: it's a core piece of the EU legal order's constitutional system. It's non-negotiable. Member States will not change the Treaties either.
If there are any comparisons with Weiss and the #bverfg's ruling of 2020, they have to be made carefully. The Polish ruling is much more radical and it points directly at the core provisions of the EU Treaties. Also, this is not about monetary policy, it's about values.
And of course: nobody every questioned the German Constitutional Court's independence. That's not the case of the Polish Constitutional Court, which even Strasbourg is now questioning its composition. It's better to keep both decision separate and in different levels.
However, by putting the standard of constitutional scrutiny so low and hitting so high (at the very core of the Treaties and EU values), the Polish Constitutional Court's decision is (paradoxically) easier to handle by the EU and it allows us to see future steps more clearly.
What will happen now? Here are some possible ways forward:
1) We need to wait and see what interpretation will the Polish Government do of the ruling. The ruling has to be published in the Official Gazette and the Government could halt that, in an attempt to find an (unlikely) negotiated solution with the @EuropeanCommiss
2) If the ruling enters into force and the Polish Government is happy to enforce it, the Commission has a relatively easy way forward. Infringement proceedings and enforcement measures under Arts. 258 and 260 TFEU.
3) The ruling will deserve an infringement of its own, in the same way that the Weiss ruling has merited infringement proceedings too (now we understand why the Commission tactically began those against Germany, anticipating what happened yesterday).
4) 260 TFEU proceedings will need to be launched as well if the Government decides to enforce yesterday's ruling instead of the Court of Justice's decisions. This will be very costly for the Polish Government. Lump sums and penalty payments are expensive for the taxpayer.
5) The recovery plan hardly stands a chance of winning Commission or @EUCouncil support, so #NextGenerationEu will not be benefitting Poland and its citizens. Not the #EU's choice, it's simply the Polish Government's miscalculations overplaying its poor cards.
6) The Financial Conditionality Regulation has now an easy case to test its provisions in case if the Commission finally puts it into action in November, as expected. Thus, the financial impact of yesterday's ruling is just unimaginable and goes even beyond #nextgenerationeu.
7) Is yesterday's ruling an indirect triggering of Art. 50 TEU? No, it's not. Art. 50 TEU needs an unequivocal and unconditional statement on the part of the Member State. A referendum and a parliamentary decisions is such a statement (see Brexit). A majority judgment is not.
8) But if the Polish Government decides to follow the ruling, then we are getting very close to an indirect triggering of Art. 50 TEU. The Treaties will start to fade away in Poland, and that is very similar to what Art. 50 TEU does: the Treaties "cease to apply".
9) And "cease to apply" they will, at least in some major areas. Once an independent judicial system ceases to exist in a Member State, no integration through law is possible. Thus, no references to Luxembourg, no judicial cooperation, no mutual recognition.. it's game over.
In sum, yesterday's ruling paves the way to a gradual but probably very fast process of disintegration of Poland's ties with the EU, with all its legal, economic, political and societal consequences.
Is this bad news for the EU? Well, of course it is. But it's also a sign of what the EU stands for and where the red lines are set. And that's, actually, good for the EU, particularly at a time in which autocratic temptations have been flirted with too frivolously.
And finally, the Polish story is also a cautionary tale for other supreme and constitutional courts tempted to play with matches. Primacy and EU integration is not a game. And their citizens will never forgive these courts if their rulings end up setting the house on fire.

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More from @DanielSarmiento

6 Oct
The @EUCourtPress has clarified the CILFIT criteria in today's ruling in Consorzio Italian Management (C-561/19). The press release evidences that the Court is trying to move the case-law forward, but the judgment is in fact quite modest. Here's a preliminary view:
First, I should start by saying that the CIM judgment makes an effort in being pedagogical and provides a good overview of where the case-law stands on the tricky issue of the duty to refer ex 267 TFEU. It's good that the Court makes these efforts, particularly in Grand Chamber.
Second, the real novelties come down to four: 1) Judges don't have to consult all the linguistic versions of the interpreted rule (see paragraph 48), but certainly more than one.
Read 13 tweets
1 Oct
En los últimos días hemos sido testigos de una polémica sobre la orden de detención dictada contra Carles #Puigdemont y su supuesta suspensión, tras haber planteado el juez #Llarena una cuestión prejudicial al Tribunal de Justicia (UE).
Mientras que la Abogacía del Estado ha sostenido que la orden de detención quedaba suspendida y, por tanto, no había riesgo de detención de Puigdemont, el juez Llarena opina todo lo contrario, e incluso reprocha a la Abogacía del Estado no haberle consultado sobre este extremo.
Esta discrepancia tiene consecuencias procesales importantes, pues el Vicepresidente del Tribunal General desestimó medidas cautelares contra el levantamiento de la inmunidad de Puigdemont sobre la base, entre otras razones, de la suspensión de la orden de detención.
Read 17 tweets

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