Poland: Out in the cold
Poland and the European Union are heading into a confrontation in the next few months over judicial changes
Poland and the European Union are heading into a political, legal and constitutional confrontation in the next few months over judicial changes which, the European Commission says, breach EU norms. Within hours of the commission’s decision to invoke article 7 of the EU treaties against these changes, President Andrzej Duda signed them into law. That sets the stage for a big argument over who defines how the rule of law operates in Poland.
The commission says the ruling majority 'can now systematically interfere with the composition, power and administration or functioning of these authorities'
The argument could hardly go deeper into questions of sovereignty and jurisdiction. It was provoked after detailed correspondence over some 13 laws introduced by the populist Law and Justice (PiS) government since 2015 affecting the constitutional tribunal, the supreme court, ordinary courts and those who appoint judges. The commission says the ruling majority “can now systematically interfere with the composition, power and administration or functioning of these authorities, thereby rendering the independence of the judiciary completely moot”. Poland’s new prime minister, Mateusz Morawiecki, says they rid his country of legal and political cronyism and shake up structures needing change.
A four-fifths majority of the European Council is required to go further towards sanctions. While both sides may hope to shift views, that will be difficult to do without loss of face and in light of similar disputes the commission has with the Hungarian government over illiberal changes there and more generally with other central and eastern European governments over their rejection of quotas for refugees and asylum seekers. Poland could eventually lose voting rights. Short of that its substantial structural funds might be reduced.
Commission vice-president Frans Timmermans is determined to proceed with the case, even as he regrets the failure to have a proper dialogue. By pushing the issue to this stage he invites a wider political engagement on the EU’s foundational norms and values. Separation of legal powers must remain central to them, even if there is some scope for a better informed debate on how restrictive Poland’s legal order has actually been.