Poland and EU law: two judgments, one conflict

Following the preliminary injunction against Poland’s judicial reform issued yesterday, two judgments on EU law are due to be made today: one in Luxembourg, one in Warsaw. And there is still further potential for conflict.

The line of conflict divides not only Brussels and Warsaw, but also Poland itself. There are those in the country who see the PiS party’s judicial policy as a dangerous course away from the EU. Opposite them, however, are those who recognize the government’s resistance to Brussels objections and requirements as an act of national self-assertion against unreasonable demands on the part of the EU.

Justice Minister Zbigniew Ziobro also assessed a ruling by the Polish Constitutional Court, which on Wednesday declared provisional orders from the Luxembourg EU Court of Justice to be inadmissible – at least if they concern the Polish judicial system. For some observers a test balloon of how far the Warsaw leadership can go when it comes to overriding EU rules.

Justice Minister Ziobro commented: “With this judgment, the Polish Constitutional Court is campaigning for the protection of the Polish constitutional order, namely against unlawful interference, a kind of seizure of power, a legal aggression on the part of the organs of the European Union, which – without any reason – stood up Constitutional organs of the Polish state to stop. ” The minister also said that the verdict that satisfied him could not have turned out otherwise. A verdict that Stanislaw Piotrowitsch was responsible for as chairman of the competent ruling chamber – today’s constitutional judge, as a member of the PiS, was an important pioneer of judicial reforms.

Polish law over EU law?

Another, even more delicate procedure before the Polish constitutional court is led by Kaczynski confidante and court president Julia Prylebska. At the Prime Minister’s request, she should clarify the question of whether, in case of doubt, Polish rules generally take precedence over EU law, which, according to the Minister of Justice, can be answered with yes anyway. Last Tuesday, at the first five-hour hearings, envoys from the government, president and parliament saw it as similar to the justice minister and the media close to the government. Only the outgoing ombudsman for civil rights Adam Bodnar stood alone in the court with his dissenting vote.

“If every EU member were to interpret EU law in their own way, it would not be possible to allow the free flow of goods, capital or services and much more besides.” Legal experts point out that the Polish Constitutional Court had not raised any objections to Poland’s signing of the European treaties in connection with EU accession. The alleged fundamental conflict between EU law and the state constitution is constructed, especially when it comes to questions of the rule of law.

Polish Constitutional Court under suspicion of bias

In other countries, too, including Germany, constitutional courts have repeatedly pointed out the limits of competence to the EU court when it comes to factual issues. Legal experts point out, however, that it was about political issues and not, as is now the case, about the rule of law itself as the basis of all EU cooperation. To make matters worse: the Polish Constitutional Court itself has been suspected of bias since a controversial exchange of personnel. A moving situation.

From a vote of no confidence to a “Polexit”?

The long-heard warnings that the PiS’s judicial policy is driving the country out of the EU are getting louder. Leszek Miller, Prime Minister of Poland during EU accession, said: “The EU Commission warns that calling into question the primacy of EU law could lead to the disintegration of the community, because community law must mean the same in every member state.” So it can happen that Poland declares a vote of no confidence in the constitutional court of the EU. And that in turn can turn out to be the last straight line on the way to an uncontrolled “Polexit”. But what has been heard so often that it hardly attracts a Pole to the streets. There have been hardly any protests recently.

It took a backseat that the government, according to its own account, had started to make the judiciary more efficient, to remove old communist cadres or other unsuitable personalities from the courts: the process times have become even longer since the reforms, and most disciplinary proceedings are turning alleged offenses today and in the exercise of the profession, not corruption or offenses from the socialist era.