Poland’s top court ruled that some EU treaties are incompatible with the country’s constitution in an escalation of tensions between Warsaw and Brussels.

Poland’s Constitutional Tribunal ruled on Thursday that some EU Treaty articles are “incompatible” with the country’s constitution, posing a major challenge to Brussels and the bloc’s legal foundation.

The decision, which rejects the supremacy of European Union treaties over national legislation, widens a rift between Warsaw and Brussels, which has accused Poland’s nationalist Law and Justice (PIS) party of undermining the rule of law and drifting away from democracy.

The two have been at loggerheads for years over Poland’s reforms of its judicial system. Critics have argued that the reforms - which have included an overhaul of the Constitutional Tribunal itself - have served to bring Poland’s courts under tighter political control. The ruling Law and Justice (PiS) party says they were needed to root out the remnants of the old communist regime.

Here’s why their relationship came to this point. 

Poland calls it “judicial independence”, but the EU is concerned

For Poland, the decision was simply a step towards “judicial independence.” 

"The EU Treaty is subordinate to the constitution in the Polish legal system ... and, like any part of the Polish legal system, it must comply with the constitution,” Judge Bartlomiej Sochanski said.

The leader of the ruling Law and Justice (PiS) party, Jaroslaw Kaczynski, welcomed the decision, saying that European regulations that are in force in Poland must comply with the Constitution instead.

"This also applies to the judiciary and the European Union has nothing to say here," Kaczynski told reporters.

But it’s not how the European Union sees the decision. European Commission president Ursula von der Leyen said she was “deeply concerned” by the ruling, promising the Commission would analyse it swiftly before announcing the next steps. 

"All rulings by the European Court of Justice are binding on all Member States' authorities, including national courts," von der Leyen said in a statement.

“This is what all EU Member States have signed up to as members of the European Union. We will use all the powers that we have under the Treaties to ensure this.”

The EU had previously warned Poland that the court case could have some repercussions.

What’s at stake now is the distribution of Poland’s pandemic recovery funds that the ruling Law and Justice (PIS) party is accusing the bloc of using as “blackmail.”

The EU is now delaying the approval of 23 billion euros ($26bn) in EU grants and 34 billion euros ($39bn) in cheap loans that were spared to help the county to recover from Covid-19’s economic impacts.

After the ruling, the EU’s justice commissioner Didier Reynders, said the EU will try to protect the principles with any tool possible. 

“We will use all the tools in the toolbox . . . we will see now how it is possible to put pressure” Reynders said when asked whether the bloc would push for a mechanism that would allow the EU to withhold the funds due to rule of law concerns.

A clash of values 

LGBT rights and abortion laws were some of the issues that caused a wrangling between the EU and the country’s ruling conservatives.

Just last year, Poland’s constitutional tribunal ruled abortions for fetal abnormalities are incompatible with the Polish constitution, amounting to a near-total ban. The ruling went into effect in January 2021, despite sparking the biggest protests in the country’s post-communist era.

The Catholic nation, which already had one of the strictest abortion laws in the EU, still allows abortions for pregnancies as a result of rape and where the mother’s life and health are at risk. 

The EU doesn’t have competence on abortion rights within a member state but the decision still met some criticism by the bloc officials.

“...member states must respect fundamental rights which bind them by virtue of the constitutions and commitments under international law,” Helena Dalli, a Maltese politician serving as equality commissioner, said.

The anti-LGBT measures that around 100 towns and villages in Poland adopted were also met with the EU backlash.

Concerns about Poland’s future in the bloc

The Polish government has said it has no intention to leave the European Union, but some critics of the recent decision are worried the move could jeopardise the country’s membership in the long-term.

On Thursday, outside of a top court in Poland, a group of protestors opened the European Union flag as they chanted “Shame!”, “Traitors?”. 

“This is probably the first step towards Polexit”, one protester, Malgorzata Roslonska, said.

According to the polls, the majority of Polish people don’t want to leave the bloc.