The European Court of Justice (ECJ) is likely to uphold the concerns of the Irish courts about extraditing people to Poland, according to an expert on European law.
Any such ruling would create a massive crisis for the EU justice system and would be enormously embarrassing for Poland.
Prof Laurent Pech, who used to work for the European Commission assessing the legal systems of applicant states, said the Luxembourg-based European Court of Justice (ECJ) "will show no mercy" when confronted with "an existential threat to the functioning of the EU legal system."
He said the decision by Ms Justice Aileen Donnelly to refer the case of Artur Celmer’s extradition to the ECJ, brings that court into a play in a crisis already involving the European Commission, the Council of Europe and the European Parliament.
Ms Justice Donnelly is to ask the Luxembourg court for certain directions in a situation where developments in Poland over recent years may have damaged the rule of law so that democracy and the rule of law in Poland have been breached, thereby potentially affecting the extradition of Mr Celmer under the European Arrest Warrant system.
Prof Pech, who has written extensively on the developments in Poland, said the case will not just be about extradition to Poland when it comes to the ECJ.
“For them it is about the functioning of the entire EU legal system,” he said. “When you mess with the fundamentals of the EU legal system, then the European Court of Justice usually shows no restraint.”
He said the situation facing the court in Poland means that if no action is taken, then the deterioration of the rule of law could spread “and that is the end of the EU legal system as we know it.”
Prof Pech is Professor of European Law at Middlesex University London and was previously the Jean Monnet Lecturer in EU Public Law at the National University of Ireland Galway.
The Warsaw government has antagonised the EU to such an extent that it has triggered Article 7 of the Treaty of the European Union, something that was never envisaged happening, he said.
Article 7 involves addressing breaches by a member state of the values, including the rule of law, that are core to the European Union. It can lead to a member state losing its vote at the European Council as well as financial sanctions.
There is no easy answer to the question as to how the EU should respond to what is happening in Poland, Prof Pech said.
“The EU system was never designed to deal with the rule of law backsliding in an EU member state.”
Ben Tonra, Professor of International Relations at the UCD School of Politics and International Relations, said the Polish government has adroitly been complaining of "bullying by Brussels" but the involvement of the ECJ will be less visibly political to the invoking of Article 7. "This creates a parallel track to the Article 7 process."
Prof Pech said the Polish government has been following the example of Hungary in undermining the rule of law, but has done so in a way that has antagonised the EU more, he said. “The Polish government is taking us for fools.”
In July of last year, the Association of Judges of Ireland expressed “grave concern” about challenges to the independence of their Polish counterparts.
They said that in order to maintain and enhance trust between judicial authorities in the European Union, which is necessary as the basis for mutual recognition, it is essential that the independence of the judiciary be maintained.