Poland’s Chief Prosecutor Zbigniew Ziobro has asked the country’s Constitutional Tribunal to rule on whether the fine imposed on Poland by the Court of Justice of the European Union (CJEU) over the divisive Turow mine is legal.

The move marks another ratcheting up of Poland's dispute with the EU over whether Polish or EU law has precedence and in particular whether the government's legal reforms have damaged the rule of law. Poland’s Constitutional Tribunal is seen as a tool to give legal backing to the government’s decisions or broader policy initiatives that have been questioned by the European Commission. 

Last month the Constitutional Tribunal, whose line-up has been engineered by the government to follow its political line, ruled that several articles of the EU's founding treaty conflict with the Polish constitution. Now the tribunal is being asked to rule on whether the CJEU itself is breaching the EU treaty.

Poland and Czechia are at loggerheads over Turow, the open-cast lignite mine sitting on the border with Czechia. The Czechs argue that Poland expanded the mine in breach of the EU’s environmental laws, especially the environmental impact directive, by not consulting properly with them. Prague says that the open-cast mine is lowering the water table on the Czech side.

Czechia sued Poland in the CJEU over the mine’s impact and secured an order from the court, telling Poland to pay €500,000 for each day of the mine’s operations. Poland refuses to pay the fine, arguing that closing down the Turow power plant – which burns lignite from the mine – would put the national power grid at risk.

The chief prosecutor, who also is Poland’s minister of justice, wants the tribunal to review one of the articles of the Treaty of the European Union – the bloc’s fundamental legal text – to check if it allows the CJEU to impose financial penalties for failure to comply with interim measures.

The question to the tribunal also covers another article of the treaty, one which the CJEU used in considering the Turow case, which refers to the “functioning of constitutional bodies of the Republic of Poland”.

The move by the chief prosecutor is yet another development in Poland’s legal tug-of-war with the EU that has seen Warsaw ignore a number of CJEU’s rulings regarding the Polish government’s judicial reforms. The EU insists that the reforms undermine Polish courts’ independence and impartiality,  therefore tearing a hole in the uniformity of the EU's legal framework, harming Poles and foreign investors. 

That also led to the CJEU issuing another fine. In late October, the CJEU fined Poland €1mn a day for not dismantling the disciplinary chamber of the Supreme Court. Poland keeps refusing to pay the fine, which will therefore be automatically deducted from EU transfers to Poland.