The Polish Constitutional Court on Tuesday postponed a decision on whether the law of the European Union takes precedence over the Polish constitution.

It has prevented the smoldering dispute in the EU over the rule of law in Poland from escalating into an uncontrolled conflict.

In this dispute stand on the one hand the European Commission, the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR).

On the other is the national-conservative Polish leadership around Prime Minister Mateusz Morawiecki and Jaroslaw Kaczynski, the chairman of the ruling law and justice party (PiS).

Kaczynski is only deputy head of government, but is considered the real power center of the country.

Thomas Gutschker

Political correspondent for the European Union, NATO and the Benelux countries based in Brussels.

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Konrad Schuller

Political correspondent for the Frankfurter Allgemeine Sonntagszeitung in Berlin.

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The national conservatives have tried over the past few years to gradually bring Poland's courts under their control.

They justify this with the argument that the country's judiciary is still under the influence of hidden cliques from the time of the communist dictatorship, which was overthrown more than thirty years ago.

Among other things, they appointed new judges to the Constitutional Court in controversial nocturnal proceedings immediately after they came to power in 2015, thus bringing it into line.

Poland partially yielded

Because of these irregular appeals, the European Court of Human Rights recently ruled that the Constitutional Court is no longer an ordinary court within the meaning of the European Charter of Human Rights. The Constitutional Court now had to decide on Tuesday on a request by Prime Minister Morawieckis, who could bring the dispute with the EU to extremes. Morawiecki has doubts as to whether EU law applies in Poland even if it contradicts the Polish constitution, and would like to have a decision by the highest court on this issue.

First of all, the question is of fundamental importance because the primacy of EU law over national provisions is considered a basis for European unification. It is also particularly relevant right now. Last year, the European Court of Justice went to parade with the Polish leadership by issuing an injunction against part of their “judicial reform”. This has now led to an escalating judges' dispute this summer: the Warsaw Constitutional Court rejected the decision of the European judges in July as an excess of competence (“ultra vires”). For its part, the ECJ immediately opposed it and, in the same month, underpinned its ruling that had just been rejected with a final judgment. Judges stand against judges.

The subject of the dispute was a disciplinary chamber newly created by Kaczynski's lawyers at the Polish Supreme Court, which, according to the liberal opposition, is an instrument for telling insubordinate judges. The judgment of the ECJ in July confirms this critical view. It states that the structure of the controversial disciplinary chamber does not offer “all guarantees of independence and impartiality”. Their judges would be politically determined and particularly well paid. The chamber could therefore "be used for political control of court decisions or to exert pressure on judges".