The European Union has started legal proceedings against Poland after the member state failed to step back from Supreme Court reforms that Brussels warned risk undermining judicial independence.
The European Commission sent a Letter of Formal Notice to the Polish government on July 2. This is the first stage of an infringement procedure, and came the day before a new maximum age was due to force more than a third of Poland’s Supreme Court judges into retirement.
The Commission, which began “unprecedented” disciplinary proceedings against Poland over its judicial reforms in December 2017, said the new law undermines judicial independence and therefore breaches Poland’s commitments to democracy under European Treaties. It said Poland had not fulfilled its commitments, as a signatory of the European Union Treaty, to ensure effective legal protections of individual rights and freedoms.
Judicial reforms by Poland’s ruling nationalist Law and Justice Party have effectively put the country’s judiciary under political control, the Commission, the EU’s governing body, said.
In December 2017, the Commission referred Poland to the EU’s central arbiter, the European Court of Justice (ECJ), for failing to live up to its legal obligations, but recommended clear steps for Poland to reverse this path. On July 2, the EU said dialogue had not satisfactorily addressed its concerns.
The Law and Justice agenda
- Poland’s Law and Justice Party formed in 2001. It was part of a coalition government from 2005-2007, but was otherwise in opposition until it won a narrow outright majority in 2015.
- The party’s presidential candidate, Andrzej Duda, also displaced incumbent Bronisław Komorowski in a run-off, consolidating the party’s control on government.
- Jarosław Kaczyński, who co-founded Law and Justice with his twin brother Lech, is party chairman but holds no government office. He is said to exert significant influence over government policy (Politico). The party’s election win in 2015 has been attributed to his lobbying for candidates who were seen as more moderate.
- The party does not advocate leaving the EU, but has called for reform in Brussels, and often defends its policies by saying that their purpose is to protect Poland’s sovereignty.
- The election in 2015 was the first one in post-Soviet Poland producing a majority government.
- Judicial reform has been high on the government’s agenda since taking office. It ran its election campaign on a platform of being tough on crime and corruption.
- The new government soon clashed with the judiciary, when Duda refused to swear in several of the judges on the constitutional court who were appointed by the previous government (Guardian).
- Duda’s reforms must be approved by the constitutional court. The court has found several of Duda’s reforms, including increasing the number of judges on that court and changing the order of cases to be heard, to be unconstitutional.
- The government prevented these rulings from being printed, and therefore stopped them taking effect.
- In 2016, Washington-based NGO Freedom House cited its concern over “irregularities” regarding the appointment of a new president of the constitutional court, a known Law and Justice loyalist.
- It was suspected that increasing the size of the tribunal was a means to fill it with party loyalists, so that it could pass legislation more easily.
- In August, the government gave the Justice Minister the authority to fire judges.
- Duda backed down on reforms that would have given him even greater control over judicial appointments in September, but imposed similar reforms through a parliamentary commission on December 1.
- Most controversially, the retirement age for judges was lowered from 70 to 65, freeing up a number of new slots on the judiciary for the government to fill (Politico).
- Members of the European Parliament (MEPs) voted in November 2017 to take measures against Poland. The parliament urged Poland to guarantee that judicial independence would be protected and to heed previous rulings of the ECJ, as well as respecting women’s rights and freedom of assembly. They also urged the Polish government to condemn a fascist march that took place in Warsaw on November 11.
- Poland’s government hit back at Brussels, with foreign minister Witold Waszczykowski saying in a statement that the move was “essentially political”.
- Writing in the Financial Times in January 2016, Duda said that judicial reforms were intended to reinvigorate Poland’s democracy. He said that Poland remained pro-European and wanted to “play a more active role in solving the EU’s most troubling problems”, such as combating terrorism. He repeated his party’s view that the EU and its members states need to control immigration. Duda has repeatedly criticized calls for deeper European integration, saying that such efforts will lead to the break-up of the bloc.
Zselyke Csaky, a researcher at Freedom House (which is supported by the U.S. government), told WikiTribune that the judicial reforms are an “enormous blow to Polish democracy” and this level of state interference in the judiciary is “unprecedented” in an EU state.
The changes are not just “court-packing” said Csaky. Other reforms mean that old cases going back 20 years could be reopened.
“In theory, no ruling is ever final because it could constantly be subject to appeal in front of the Supreme Court,” which threatens a return to a Soviet-style emphasis on “social justice” over “legal justice,” said Csaky.
Most troubling, Csaky added, is that undermining judicial independence is part of a broader trend in Poland since the Law and Justice Party took office: “one by one and with strong determination, they have targeted the institutions underpinning democracy such as the judiciary, the media, and civil society.”
Poland’s government is “trying to stamp out pluralism altogether,” said Csaky.