Poland and the Rule of Law: What next in the battle between the EU and the Polish government?

European Commission ‘analysing’ Polish government’s response to questions over controversial law enabling sanctions against judges, says Justice Commissioner Didier Reynders

By Andreas Rogal

Andreas Rogal is a Brussels-based journalist and copy editor

18 Aug 2021

The European Parliament is in recess, and MEPs are enjoying their summer holidays.

However, one issue that will no doubt occupy several of its committees upon their return – the EU-Poland rule-of-law dispute - is shaping up to ever more explosive dimensions:

On Monday, the deadline expired for the Polish government to respond to the European Commission’s inquest into the new Polish ‘Disciplinary Chamber’ (DC) and other legal provisions enabling sanctions against judges.

In July, the Grand Chamber of the European Court of Justice (ECJ) had ruled that the new disciplinary regime for Polish judges was incompatible with EU law. As a result, the vice-President of the ECJ ordered the immediate suspension of the application of the legislative provisions governing the jurisdiction of the controversial chamber.

EU Justice Commissioner Didier Reynders confirmed receipt of the Polish government’s answer on Tuesday via Twitter, saying; “Yesterday evening, I received the reply from the Polish authorities to the Commission’s letter sent on 20 July. We had asked Poland to confirm it would take the necessary measures to fully comply with the European Court of Justice’s order and judgement. We are analysing the reply.”

The Commission’s analysis may, of course, take some time but several legal experts have already expressed strong opinions based on a communiqué published by the Polish government on the issue outlining its main arguments.

"Yesterday evening, I received the reply from the Polish authorities to the Commission’s letter sent on 20 July. We had asked Poland to confirm it would take the necessary measures to fully comply with the European Court of Justice’s order and judgement. We are analysing the reply” EU Justice Commissioner Didier Reynders

On the DC, the communiqué confirms what the de facto leader of the Polish government, the Law and Justice party chief Jarosław Kaczyński, had already announced last week, specifically its abolition in “the coming months”.

However, as many experts pointed out, this will by no means guarantee an end to the practice of prosecuting and harassing judges who are critical of the Polish government.

Wojciech Sadurski, Challis Professor in Jurisprudence at the University of Sydney who also teaches at the University of Warsaw’s Centre for Europe, explained this in a recent blog for Verfassungsblog.

Entitled “The Disciplinary Chamber May Go – but the Rotten System will Stay”, he noted that while the DC might be the most visible part of the unlawfulness of the Polish judiciary reforms, it is “not the only aspect of that pathology by a long shot, and the cancerous character of the entire disciplinary system has been depicted, denounced, and declared inconsistent with EU law.”

He continued, “After all, the very first charge in the infringement action by the Commission was that Polish law ‘allow[ed] the content of judicial decisions to be classified as a disciplinary offence involving judges of the ordinary courts’ (para. 1)”. In other words, he explained, judges in Poland can be disciplined by the justice ministry for arriving at a ‘wrong’ verdict.

Much is made of constitutional identity in the Polish communiqué, with the by now familiar references to the constitutional courts of other EU members probing their competences vis-a-vis the ECJ.

However, none of these Member States (Germany, France and Denmark are cited among others) can seriously be accused of undermining the independence of their judiciaries.

the communiqué concludes with an ominous paragraph referring to the July ruling of the equally new and infamous Polish Constitutional Tribunal. This body - at the behest of Prime Minister Morawiecki and in open contradiction with EU law - had ruled that ECJ interim orders do not apply to the Polish judiciary.

"The communiqué concludes with an ominous paragraph referring to the July ruling of the equally new and infamous Polish Constitutional Tribunal. This body - at the behest of Prime Minister Morawiecki and in open contradiction with EU law - had ruled that ECJ interim orders do not apply to the Polish judiciary"

The communiqué reads: “At the same time, the Commission was informed that Poland exercised its procedural rights by submitting a motion to set aside the ruling of the Court of Justice of 14 July this year on the application of an interim measure in case C-204/21 R concerning the Disciplinary Chamber of the Supreme Court. The application is based on the judgement of the Constitutional Tribunal of 14 July this year in case P 7/20.”

Laurent Pech, Professor of European Law at London’s Middlesex University, in picking apart the communiqué in a Twitter thread on Tuesday, believes that Poland has effectively left the EU legal order.

He concludes that, “Contrary to previous statements [the] communiqué does not directly deny ECJ authority/explicitly refuse to apply ECJ orders on account of its (alleged) unconstitutionality (contrary to the Ministry of Justice) yet hides behind [a] number of laughable claims to explain why compliance [is] not possible. This should make it quasi impossible for [the] Commission to procrastinate/settle for [a] fudge.”

At the same time, two other Polish pieces of legislation have continued to hit the headlines. The first is a law banning foreign (non-EU or EEA) ownership of media companies. This is clearly aimed at Poland’s most popular independent news channel, TVN24, owned by the US-based Discovery Channel.

Amid chaos and confusion in the Sejm (the lower house of the Polish parliament) - the opposition initially won a vote on their surprise motion to postpone the decision. However, under dubious circumstances, a second vote was then called which the government narrowly won - the law being adopted by the Sejm last Wednesday.

The Polish government had been explicitly warned by the US government not to proceed with the legislation; however, the pleas of Poland’s most important non-EU ally’s fell on deaf ears. In an ironic twist, the Discovery Channel has now obtained a licence from the Dutch regulator, which would make it possible to broadcast TVN24 to Poland even if its Polish licence were not renewed in September.

The Polish bill still has to pass the upper house, the Senat, where the government does not hold a majority.

The second new law was one ruling out any compensation for Polish Jews for property confiscated during the Nazi occupation and the communist era - amounting to a ban on restitution for Holocaust survivors.

"If I were the Commission, I would welcome the plan to liquidate the Disciplinary Chamber, request [a] detailed timeline and [an] outline of that, point out that the Chamber is still operating, conclude that CJEU decisions have not been implemented and proceed with fines” Jakub Jaraczewski, rule of law research coordinator at the Berlin-based NGO Democracy Reporting International

This has created outrage in Israel and among Jewish organisations such as the European Jewish Congress. In a statement, Congress President, Dr Moshe Kantor, said: “This law is undemocratic, unjust and immoral.”

This is not bringing order to chaos as [Poland’s] President Duda claims; it is making legal what should be illegal and is merely legalising theft. The President had an opportunity to right the wrong created by the parliament, he could have shown moral clarity and leadership, but he chose not to.”

He added, underlining (even if unintentionally) what seems to be emerging from both examples, namely Poland’s increasing isolation, “Moreover, this law will also further highlight Poland’s unique position as the only country in the region which makes Holocaust restitution impossible and runs counter to its international commitments.”

“It is outrageous that someone who survived the Holocaust, who will be in their later years, will still be deprived justice by this cruel, illegitimate and discriminatory law.”

Returning to the principal battlefield of judiciary reform, Jakub Jaraczewski, rule of law research coordinator at the Berlin-based NGO Democracy Reporting International, commenting on Twitter, now expects “nail-biting days ahead as we wait to see whether Mr Reynders and his team will be satisfied with what PM Morawiecki proposes.”

On a more serious note, having read the communiqué, Jaraczewski suggests a way ahead: “What now? If I were the Commission, I would welcome the plan to liquidate the Disciplinary Chamber, request [a] detailed timeline and [an] outline of that, point out that the Chamber is still operating, conclude that CJEU decisions have not been implemented and proceed with fines.”

In the meantime, the Commission is continuing its consultation with Member States and the European Parliament over the draft guidelines for applying the new rule of law mechanism.

The Regulation is supposed to be the tool that links adherence to the rule of law to EU funding. A Commission spokesperson said that they expect to publish the guidelines in early autumn.

Read the most recent articles written by Andreas Rogal - EU State of the Union: European Parliament reaction

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