On Thursday, the Polish Constitutional Tribunal ruled that key articles of one of the EU’s main treaties are incompatible with Polish law, effectively rejecting the principle that EU law has primacy over national law in certain judicial areas. In practical terms, this ruling introduces aspects of a legal Polexit, exacerbating the problem of judicial cooperation between Polish and European courts, in particular the mutual recognition of judgments. “Articles 1 and 19 of the Treaty on the Functioning of the EU are not compatible with the Constitution of Poland.” With this ruling by the Polish Constitutional Court, Warsaw takes its confrontation with Brussels and throws the stone to the extreme. But it is not “Polexit”, Polish government sources clarify. The former President of the European Council, Donald Tusk, is of a completely different opinion. While Prime Minister Mateusz Morawiecki declares that “the European Union is also our community, our union“. So why so much chaos?

Apparently, the prime minister has presented the challenge as protection against EU Supreme Court rulings over the past six years. These rulings condemned the government’s radical changes in the justice system. Morawiecki was also trying to prevent Polish judges from using EU law to question the status of their colleagues appointed as a result of such changes. The European Commission says such changes have undermined the independence of the judiciary and opened the courts to political interference. The Constitutional Tribunal was the first objective of the reform of the Polish Law and Justice (PiS) party. It is now dominated by judges who sympathize with the party, one of whom has been appointed illegally, according to the European Court of Human Rights.

Both Morawiecki and Poland’s most powerful politician, PiS President Jaroslaw Kaczynski, insist that Poland wants to remain in the EU. They accuse the opposition of spreading fake news to scare an electorate that overwhelmingly supports membership, although more Poles now express concern about the loss of sovereignty to the detriment of the EU. And the unprecedented challenge made by the Polish prime minister to one of the fundamental legal principles of the European Union has seriously intensified his government’s dispute with Brussels. Fueling concerns that Poland is heading to the door.

Accession has given Poland access to billions of euros to invest in projects that have visibly transformed the country’s landscape, as well as access to the single market. The Polish government is convinced that it has done nothing more than the German court in Karlsruhe when it challenged the legitimacy of the European Court of Justice’s ruling on “Quantitative Easing”, the ECB’s government bond purchase program. Is that so? Not quite.

Ursula von der Leyen has spread a very harsh note in tones, not in actions: not yet, at least. “Our treaties are very clear – says the President of the Commission – All the judgments of the European Court of Justice are binding on the authorities of all Member States, including national courts. EU law has primacy over national law, including constitutional provisions. This is what all EU Member States have signed up to as members of the European Union. We will use all the powers we have under the Treaties to ensure this.” But for the time being, the Commission is not even unbalanced in clarifying the possibilities for action against Warsaw.

The Polish case opens a serious clash, as the judgment contests two fundamental articles of the EU Treaty: the first constitutive of the Union and the nineteenth that regulates the Court of Justice and its relationship with national jurisprudence. But then, why pull the string if the goal is not to leave the EU? To defend the Polish reform of justice that according to Brussels threatens the independence of judges (reform condemned by the EU Court of Justice, hence the Warsaw counter-move) and to deal with open dossiers. In addition to Poland’s recovery and resilience plan, which is still awaiting Approval from Brussels for violations of the rule of law, Poland is now demanding that the EU fund the anti-immigrant walls under construction on the eastern border. The request, supported by 11 other countries, is on the table of the European Ministers of the Interior.

Now the ball is in Brussels. Already last night, European Commissioner Didier Reynders announced that the EU will use “all the tools at its disposal” to ensure compliance with the principle that provides for the primacy of EU law over national ones. But Reynders himself stresses that the examination of the Polish recovery and resilience plan is a separate process. Just as they claim in Warsaw, where they add that a technical agreement with Brussels has been reached for weeks.” That policy is missing, the new clash does not help, but will the EU find the strength and the forms to be respected? For now, the Commission has not even decided to suspend the examination on the Polish level, despite requests to this effect beginning to arrive from the European Parliament.

The European Commission has yet to approve the €57 billion Covid recovery plan, money the government needs to finance its “Polish Deal”. Negotiations are ongoing and it is suggested that the government is using the ruling as leverage to get the deal on the plan. Until last week, the Commission’s approach was to approve both the Polish and Hungarian plans, reserving the right to block European funds at a later date. At the base of this hypothesis, small steps were taken by the Polish authorities: the Warsaw government has granted the renewal of licenses to the American-owned TV TV TVN, critical of the executive; Some regions of Poland have backtracked on the decision to ban LGBTQ entry, but now the new clash is reshuffling the cards. In any case, the judgment does not take effect until it is published. Although the government is legally obliged to do so, it has not yet done so.

And if Polish leaders are adamant about not wanting a Polexit, why do two of Kaczynski’s long-term confidants, Marek Suski and Ryszard Terlecki, stok anti-EU sentiments? Last month Suski spoke of fighting the “occupier of Brussels” and Terlecki said the UK had shown that “the dictatorship of the Brussels bureaucracy” could be defeated by leaving. Terlecki, who heads the parliamentary caucus of the ruling PiS party, insisted Poland wants to stay but said “drastic solutions” should be sought if the conflict is not resolved. Perhaps the party is preparing the ground for an eventual exit once Poland has to pay more money into the EU budget than it takes. Perhaps he is playing hard to try to get the best possible compromise with Brussels. Maybe it’s both.