Poland steps up fight with Europe over rule of law

BRUSSELS – Poland has stepped up a six-year struggle with the European Union over the rule of law after the country’s Constitutional Court ruled it does not have to comply with an order from the bloc’s Supreme Court regarding its oversight of judges.

The Polish court ruling on Wednesday follows an order from the EU’s highest court, the European Court of Justice, to suspend a disciplinary “chamber” which critics say has been used by the ruling party to intimidate the judges he doesn’t like. . The highest Polish court declared that the European Court, based in Luxembourg, did not have the power to impose such orders under the Polish Constitution.

Thursday the European Court of Justice declared that the system of control and discipline of judges in Poland, set up by the ruling party, was not compatible with EU law and that its impartiality and independence from political interference was not can be guaranteed.

If Poland does not comply with the EU ruling, the European Commission, the bloc’s executive, can ask the court to impose daily fines. The Commission considers that Poland’s actions constitute a violation of the treaties which unite the bloc and which guarantee independent justice.

The Polish government argued that the Disciplinary Chamber, which was established in 2018, was necessary to purge a corrupt system that includes vestiges of the Communist era.

The head of the Polish parliamentary committee for justice, Marek Ast, criticized the decision of the European Court, saying that the organization of judicial systems should be the responsibility of EU member states. “The standards that the ECJ draws from EU treaties are not in line with the Polish Constitution,” he said, referring to the court.

Zbigniew Ziobro, Polish Minister of Justice, told reporters that the court’s decision was a political decision that separated states “into better and worse”.

In another rule of law battle, the Commission said on Thursday it was starting separate legal proceedings against Poland and Hungary for alleged violations of the rights of LGBTQ people. The Commission acted in response to the recent Hungarian law banning the portrayal or promotion of homosexuality to under-18s and so-called LGBT-free zones in Poland.

“Equality and non-discrimination are fundamental principles of the EU, enshrined in its treaties and in the Charter of Fundamental Rights,” the Commission said in a statement, explaining the legal action. He added that discrimination against LGBTQ people persisted across the bloc, “which is why the EU must be at the forefront of efforts to better protect” their rights.

Critics have denounced the Hungarian law as an attack on fundamental rights, but with key positions in the country’s high courts filled with loyalists of Prime Minister Viktor Orban, hope for a domestic remedy is low.

The issue has allowed Orban to divide the unprecedented, albeit fragile, six-party coalition, challenging his leadership in next year’s national elections. And he used international criticism of the law to present criticism of Hungary as being rooted in a cultural war waged by leftists and cosmopolitan liberals.

The Polish Law and Justice Party similarly uses questions of identity, nationalism and resistance to a more liberal European Union elite to oppose growing opposition to its long reign. This opposition was reinforced by the decision of Donald Tusk, former Polish Prime Minister and former President of the European Council, to return to internal politics with the aim of defeating Law and Justice.

Poland and Hungary have long been at daggers drawn with Brussels over what critics see as an attack on the pillars of a healthy democracy, notably the independence of the judiciary and the media, as well as the rights of minorities. Although the Commission has taken several legal actions in an attempt to discipline Budapest and Warsaw, its scope has been limited, legal proceedings take considerable time and Poland and Hungary have suffered few consequences.

Hungary has always complied with the rulings of the European Court of Justice, which is the highest authority in the interpretation of EU law. But now Poland appears to be challenging the court’s supremacy over what it claims to be national law.

The problem, however, is broader than the actions of two countries that some see as “illiberal democracies.” More problematically, the German Supreme Court, which interprets its Constitution, known as the Basic Law, has also questioned the supremacy of the European Court of Justice. Last year, for example, it argued that the European Court had exceeded its jurisdiction to rule on the legality of issuing European bonds.

The Commission and the European Court have responded harshly, the Court say it’s all alone “Has jurisdiction to judge that an act of an EU institution is contrary to EU law”.

Last month, the Commission has initiated infringement proceedings against Germany on the primacy of decisions of European courts over German decisions. It came after the German Constitutional Court delayed government approval of a European Central Bank bond purchase program, even though it had already been approved by the European Court of Justice.

The deepening dispute with Poland and Hungary comes amid the disbursement of the EU’s $ 857 billion coronavirus stimulus package, which, after intense bargaining, has been linked to meeting EU standards. rule of law, such as an independent judiciary and transparency. The Commission has still not approved the spending plans for Poland and Hungary, which is a necessary step for the disbursement of funds, due to concerns about corruption and the rule of law.

The Commission said on Thursday that it was analyzing the Polish Constitutional Court’s decision “also in light” of the country’s recovery plan. “The proper implementation of national recovery plans requires that Member States have management, control and judicial oversight systems that can ensure the proper use of European funds,” said Eric Mamer, chief spokesperson for the Commission.

The rule of law and the recovery fund were among the topics discussed Tuesday by the Polish Prime Minister, Mateusz Morawiecki, and Ursula von der Leyen, President of the Commission. Mrs von der Leyen described it on Twitter like a “good exchange”.

But the ruling coalition in Poland is internally divided, and Mr Morawiecki is under national pressure because of the national response to the coronavirus and the prospect of losing EU funds.

Members of the European Parliament and legal experts, who have been more outspoken on rule of law issues than the Commission, say recent actions by Poland and Hungary are a valid reason for suspending stimulus funds.

“Given the scale of the rule of law collapse we are witnessing in Poland, the cross-compliance regulation could be immediately activated by the Commission”, said Laurent Pech, professor of European law at Middlesex University from London.

Some suggest the latest rulings could prompt Poland to consider leaving the European Union, known as ‘Polexit’, but this is seen as far-fetched, given the popularity of European identity and support. financial among a majority of Poles.

“The Polish authorities are now fundamentally violating the basic conditions for EU membership,” Pech said, calling the Polish court ruling “an acceleration of the Polexit process”.

Manfred Weber, the leader of the powerful center-right European People’s Party group in the European Parliament, tweeted: “This should serve as a warning to all Poles who are truly pro-European and want a European future for their children and grandchildren: your government is clearly on the path to #Polexit.”

Terry Reintke, a green lawmaker, wrote: “Too much time has been wasted. We need a determined Commission to finally stand up to this.

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