EXPLAINER: Poland’s rule of law crisis

EXPLAINER: Poland’s rule of law crisis
“Poland has been blackmailed for months,” Justice Minister Zbignie Ziobro said this week.
By Wojciech Kosc in Warsaw April 29, 2022

Poland’s battle with the European Union over the rule of law is in its seventh year now, with another – perhaps final – twist looming.

In the coming weeks, the Polish parliament will debate a proposal to overhaul the so-called Disciplinary Chamber of the Supreme Court in a way that addresses Brussels’ criticisms over the chamber's independence and impartiality.

The debate will be, predictably, another episode in the showdown between the ruling radical rightwing coalition of Law and Justice (PiS) and United Poland and the opposition centre-right and leftwing parties. 

Somewhat more novel is the fact that it has also become a showdown between PiS and United Poland, with now near-constant speculation that Law and Justice is getting ready to kick its junior partner out of the ruling camp and hold a snap election, which would inevitably pit one against the other, with no shortage of accumulated resentment.

For PiS, revamping the Disciplinary Chamber or at least removing it as the focus of  Brussels’ complaints is vital to finally unlocking billions from the EU’s pandemic recovery fund,  which the EU has frozen over the rule of law issue. Using the funds to boost the economy is a major plank in the party’s plan to win a third straight term in office at the 2023 election. 

For the anti-EU United Poland, however, it would bury its flagship policy and – to add insult to injury – do so pretty much on the orders of the EU, which, in turn, the party sees as encroaching ever more boldly on the rights of sovereign member states. 

Moreover, United Poland has argued, solutions it has proposed for the Supreme Court and for the judiciary in general have been implemented in other EU countries – including in Germany, the party’s favourite enemy – to no reaction from the Eurocrats whatsoever, a sure sign of Brussels regarding Poland as a second-rate member state.

What’s it all about?

The parliamentary debate about the Supreme Court’s Disciplinary Chamber will be over the reforms necessary to remove doubts the European Commission has about the chamber not providing “guarantees of impartiality and independence and, in particular, not [being] protected from the direct or indirect influence of the Polish legislature and executive”.

The quote is from a ruling by the EU’s top court, the Court of Justice of the European Union (CJEU), which looked into the matter in July.

The CJEU scrutinised not just the Disciplinary Chamber but also the entire system of disciplining Polish judges introduced by the government, as drafted by United Poland's leader, Justice Minister Zbigniew Ziobro.

In the verdict, the CJEU said that Poland’s disciplinary regime allows judicial decisions – such as court sentences – to be classified as a disciplinary offence. 

That “could be used in order to exert political control over judicial decisions or to exert pressure on judges with a view to influencing their decisions, and could undermine the independence of the courts concerned”, the CJEU said.

Polish judges could also face disciplinary proceedings for asking the CJEU for guidance on specific cases, the CJEU pointed out. That “undermines their right or, as the case may be, their obligation to put questions to the [CJEU], as well as the system of judicial co-operation between the national courts and the CJEU”, as established by EU treaties.

Poland also has failed to “guarantee that disciplinary cases brought against judges of the ordinary courts will be examined within a reasonable time and has failed to guarantee respect for the rights of defence of accused judges, thereby undermining their independence,” the CJEU said.

Following the ruling, the CJEU slapped Poland with a daily fine of €1mn for maintaining the disciplinary regime in place.

The poison 

Why is the Disciplinary Chamber not regarded as independent and impartial, but instead seen as prone to pressure from the parliamentary majority and the government?

The answer lies with the same ruling of the CJEU, in which it said that the entire system of disciplining judges conflicted with EU law.

In the ruling, the CJEU said that the fundamental issue was that the disciplinary regime could not be independent and impartial as it is stacked with judges selected by the National Council of the Judiciary (KRS), which PiS had overhauled earlier to ensure government loyalists had control over it.

In fact, the government-engineered KRS compromised not just the disciplinary framework but everything and anything that its judges were involved in.

It appeared only a matter of time for somebody to link the KRS-appointed judges to the right to fair trial. Or rather – the lack of it. And indeed, in early February, the European Court of Human Rights (ECHR) ruled that Poland violated a company’s right to fair court proceedings by putting unlawfully appointed judges on a panel in the Supreme Court that reviewed the company’s case. The judges were all appointed by the KRS.

The case might start a deluge of similar cases if a dispute involves judges appointed by the KRS. There are around 100 cases concerning the Polish judiciary in the ECHR currently. There have also been several judgments in other member state's courts that have gone against Poland because of the perceived weaknesses in its rule of law.

It’s not us, it’s you

The Polish government’s response –  typically voiced by the leaders of United Poland – to the series of legal broadsides has been invariably the same: The EU is not to tell a member state what it may or may not do to its judiciary. Doing so is usurping new powers by the Eurocrats, and represents another step along the way to the ultimate horror of any self-esteemed Eurosceptic party: the federalisation of the EU.

Ziobro – the justice minister and prosecutor general in one – has never minced words about what he thinks of the EU having a problem with his and his party’s judiciary reforms.

“Poland has been blackmailed for months,” Ziobro said this week, referring to the Commission having linked the reform of the Disciplinary Chamber to unlocking money from the recovery fund.

Ziobro’s camp has even taken its criticism to the point in which the Commission is “testing” Poland about the rule of law in order to corner it on other crucial issues.

“I can see in Brussels how Poland is constantly being tested whether it will succumb to the EU's blackmail regarding the judiciary. If we give in, there will be pressure to give in to other issues, such as energy security,” United Poland’s Beata Kempa MEP said recently.

The EU would also like Poland to accept things like equal rights for LGBTQ people, Kempa suggested.

“This is the ground that is being prepared for a very large operation that is called federal Europe,” Kempa added. According to her and her party colleagues, Germany is behind the scheme, building their “power status on the basis of the EU” – as Ziobro put it in February.

Constitutional Tribunal at your service

But Poland has not just offered angry rhetoric and tinkering with the KRS and the Supreme Court.  The government has also engineered changes in the personnel of Poland’s Constitutional Tribunal – a special court to rule on constitutional matters – so that it churns out whatever the government may find politically suitable at any given moment.

And the tribunal has duly provided legal interpretations of where the EU’s legal order stands in relations to Poland’s. 

In the key ruling, issued in October last year, the Constitutional Tribunal said directly that the Treaty of the European Union – the bloc’s founding document – was incompatible with the Polish Constitution with regards to Polish courts giving primacy to EU law and being able to disregard the Polish Constitution and laws.

The ruling prompted the somewhat stupefied European Commission to state the obvious that “EU law has primacy over national law, including constitutional provisions”.

My way or the highway

What is obvious to Brussels, however, remains very much anathema  to Ziobro and his hawks, who, in the run-up to the big parliamentary debate on what to do with the Disciplinary Chamber of the Supreme Court, plan to sneak in a preamble denying what the Commission said about the primacy of EU law.

For PiS, this is only spells more trouble in the coalition that is already under stress because of rampant inflation and the massive influx of refugees from the war in Ukraine. The party leaders have been making noises that they have had enough of United Poland's reckless politicking, pointing to  United Poland’s biggest weakness – its nearly non-existent popular support when measured in the polls.

“If the coalition were to break up or otherwise its unity were compromised, I’ll be strongly for the electoral lists [of MP candidates] to consist only of PiS people,” Ryszard Terlecki, the head of PiS’ parliamentary caucus said on April 26.



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